exv4w3






Exhibit 4.3




Execution Version




DOLLAR FINANCIAL CORP.




3.00% Senior Convertible Notes Due 2028



 





INDENTURE



Dated as of December 21, 2009



 





U.S. BANK NATIONAL ASSOCIATION



TRUSTEE



 















 




Cross-Reference Table 1


Trust Indenture Act Section Indenture Section



	 	 	 
	310 (a)(1)
	 	Section 7.10
	(a)(2)
	 	Section 7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	N.A.
	(b)
	 	Section 7.08
	 
	 	Section 7.10
	(c)
	 	N.A.
	311 (a)
	 	Section 7.11
	(b)
	 	Section 7.11
	(c)
	 	N.A.
	312 (a)
	 	Section 2.05
	(b)
	 	Section 12.03
	(c)
	 	Section 12.03
	313 (a)
	 	Section 7.06
	(b)(1)
	 	Section 7.06
	(b)(2)
	 	Section 7.06
	(c)
	 	Section 7.06  Section 12.02
	(d)
	 	Section 7.06
	314 (a)
	 	Section 4.02
	(b)
	 	N.A.
	(c)(1)
	 	Section 12.04
	(c)(2)
	 	Section 12.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	Section 12.05
	(f)
	 	Section 4.04
	315 (a)
	 	Section 7.01(b)
	(b)
	 	Section 7.05
	(c)
	 	Section 7.01(b)
	(d)
	 	Section 7.01(c)
	(e)
	 	Section 6.11
	316 (a)(1)(A)
	 	Section 6.05
	(a)(1)(B)
	 	Section 6.04
	(a)(2)
	 	N.A.
	(b)
	 	Section 6.07
	(c)
	 	Section 1.05(e)
	317 (a)(1)
	 	Section 6.08
	(a)(2)
	 	Section 6.09
	(b)
	 	Section 2.04
	318 (a)
	 	Section 12.01







 



			
	N.A. means not applicable. 
	 
	1 This Cross-Reference Table is not part of the Indenture.











 




Table of Contents



	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	8	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	9	 
	Section 1.04. Rules of Construction
	 	 	10	 
	Section 1.05. Acts of Holders
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	11	 
	Section 2.02. Execution and Authentication
	 	 	12	 
	Section 2.03. Registrar, Paying Agent, Bid Solicitation Agent and Conversion Agent
	 	 	13	 
	Section 2.04. Paying Agent to Hold Money and Securities in Trust
	 	 	13	 
	Section 2.05. Securityholder Lists
	 	 	14	 
	Section 2.06. Transfer and Exchange
	 	 	14	 
	Section 2.07. Replacement Securities
	 	 	15	 
	Section 2.08. Outstanding Securities; Determinations of Holders’ Action
	 	 	16	 
	Section 2.09. Temporary Securities
	 	 	17	 
	Section 2.10. Cancellation
	 	 	17	 
	Section 2.11. Persons Deemed Owners
	 	 	17	 
	Section 2.12. Global Securities
	 	 	17	 
	Section 2.13. CUSIP Numbers
	 	 	23	 
	Section 2.14. Payment
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	REPURCHASES
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Repurchase of Securities at Option of the Holder on Certain Dates
	 	 	24	 
	Section 3.02. Repurchase of Securities at Option of the Holder Upon a Fundamental Change
	 	 	26	 
	Section 3.03. Effect of Fundamental Change Repurchase Notice
	 	 	29	 
	Section 3.04. Deposit of Fundamental Change Repurchase Price
	 	 	29	 
	Section 3.05. Securities Purchased in Part
	 	 	30	 
	Section 3.06. Covenant to Comply with Securities Laws upon Purchase of Securities
	 	 	30	 
	Section 3.07. Repayment to the Company
	 	 	30	 





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	 	 	Page	 
	ARTICLE 4
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Securities
	 	 	30	 
	Section 4.02. SEC and Other Reports
	 	 	31	 
	Section 4.03. Compliance Certificate
	 	 	31	 
	Section 4.04. Further Instruments and Acts
	 	 	31	 
	Section 4.05. Maintenance of Office or Agency
	 	 	31	 
	Section 4.06. Delivery of Certain Information
	 	 	32	 
	Section 4.07. Reserved
	 	 	32	 
	Section 4.08. Resale of the Securities
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	SUCCESSOR COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. When Company May Merge or Transfer Assets
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	33	 
	Section 6.02. Acceleration
	 	 	36	 
	Section 6.03. Other Remedies
	 	 	36	 
	Section 6.04. Waiver of Past Defaults
	 	 	36	 
	Section 6.05. Control by Majority
	 	 	37	 
	Section 6.06. Limitation on Suits
	 	 	37	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	37	 
	Section 6.08. Collection Suit by Trustee
	 	 	37	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	38	 
	Section 6.10. Priorities
	 	 	38	 
	Section 6.11. Undertaking for Costs
	 	 	39	 
	Section 6.12. Waiver of Stay, Extension or Usury Laws
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Duties of Trustee
	 	 	39	 
	Section 7.02. Rights of Trustee
	 	 	40	 
	Section 7.03. Individual Rights of Trustee
	 	 	42	 
	Section 7.04. Trustee’s Disclaimer
	 	 	42	 
	Section 7.05. Notice of Defaults
	 	 	42	 
	Section 7.06. Reports by Trustee to Holders
	 	 	43	 
	Section 7.07. Compensation and Indemnity
	 	 	43	 
	Section 7.08. Replacement of Trustee
	 	 	44	 
	Section 7.09. Successor Trustee by Merger
	 	 	45	 
	Section 7.10. Eligibility; Disqualification
	 	 	45	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	45	 






ii









 





	 	 	 	 	 
	 	 	Page	 
	ARTICLE 8
	 	 	 	 
	DISCHARGE OF INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Discharge of Liability on Securities
	 	 	45	 
	Section 8.02. Repayment to the Company
	 	 	45	 
	Section 8.03. Application of Trust Money
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	AMENDMENTS
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Without Consent of Holders
	 	 	46	 
	Section 9.02. With Consent of Holders
	 	 	47	 
	Section 9.03. Compliance With Trust Indenture Act
	 	 	48	 
	Section 9.04. Revocation and Effect of Consents, Waivers and Actions
	 	 	48	 
	Section 9.05. Notice of Amendments, Notation on or Exchange of Securities
	 	 	48	 
	Section 9.06. Trustee to Sign Supplemental Indentures
	 	 	48	 
	Section 9.07. Effect of Supplemental Indentures
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	CONVERSIONS
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Conversion Privilege
	 	 	48	 
	Section 10.02. Conversion Procedure; Applicable Conversion Rate; Fractional Shares
	 	 	51	 
	Section 10.03. Payment Upon Conversion
	 	 	53	 
	Section 10.04. Adjustment of Applicable Conversion Rate
	 	 	55	 
	Section 10.05. Reserved
	 	 	64	 
	Section 10.06. Effect of Reclassification, Consolidation, Merger or Sale
	 	 	64	 
	Section 10.07. Taxes on Shares Issued
	 	 	65	 
	Section 10.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements
	 	 	65	 
	Section 10.09. Responsibility of Trustee
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	REDEMPTION
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Redemption
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Trust Indenture Act Controls
	 	 	68	 
	Section 12.02. Notices
	 	 	68	 
	Section 12.03. Communication by Holders with Other Holders
	 	 	69	 
	Section 12.04. Certificate and Opinion as to Conditions Precedent
	 	 	69	 
	Section 12.05. Statements Required in Certificate or Opinion
	 	 	69	 
	Section 12.06. Separability Clause
	 	 	70	 
	Section 12.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	70	 





iii








 






	 	 	 	 	 
	 	 	Page	 
	Section 12.08. Legal Holidays
	 	 	70	 
	Section 12.09. Governing Law
	 	 	70	 
	Section 12.10. No Recourse Against Others
	 	 	70	 
	Section 12.11. Successors
	 	 	70	 
	Section 12.12. Multiple Originals
	 	 	70	 
	 
	 	 	 	 
	EXHIBIT A Form of Global Security
	 	 	 	 
	EXHIBIT B Form of Certificated Security
	 	 	 	 
	EXHIBIT C Transfer Certificate
	 	 	 	 
	EXHIBIT D Notice of Occurrence of Fundamental Change
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE I Amount of Make Whole Premium
	 	 	 	 






iv









 





     INDENTURE dated as of December 21, 2009 between Dollar Financial Corp., a Delaware corporation
(“Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“Trustee”).



     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 3.00% Senior Convertible Notes Due 2028:



ARTICLE 1

Definitions And Incorporation By Reference




     Section 1.01. Definitions.



     “144A Global Security” means a permanent Global Security in the form of the Security attached
hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.



     “Additional Amounts” means the interest that is payable by the Company pursuant to
Section 6.01(k).



     “Affiliate” of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For the
purposes of this definition, “control” when used with respect to any specified person means the
power to direct or cause the direction of the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Applicable Conversion Price” means, at any given time, $1,000 divided by the Applicable
Conversion Rate at such time.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction and as in effect from time to
time.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of such board.



     “Board Resolution” means a resolution of the Board of Directors.



     “Business Day” means, with respect to any Security, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are authorized or required by
law, regulation or executive order to close in the City of New York.



     “Capital Stock” for any corporation means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that corporation.



1









 





     “cash” means U.S. legal tender.



     “Cash Settlement Averaging Period” with respect to any Security means the 20 consecutive
Trading Days beginning on the second Trading Day after the Conversion Date for such Security.



     “Certificated Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit B.



     “close of business” means 5:00 p.m. (New York City time).



     “Closing Sale Price” of the Common Stock on any date means the closing sale price per share
(or, if no closing sale price is reported, the average of the bid and asked prices or, if more than
one in either case, the average of the average bid and the average asked prices) on such date as
reported by NASDAQ or, if the Common Stock is not reported by NASDAQ, in composite transactions for
the principal U.S. national or regional securities exchange on which the Common Stock is traded.
If the Common Stock is not listed for trading on a U.S. national or regional securities exchange,
the Closing Sale Price will be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by the National Quotation Bureau
Incorporated or similar organization. If the Common Stock is not so quoted, the Closing Sale Price
will be the average of the midpoint of the last bid and asked prices for the Common Stock on the
relevant date from each of at least three independent nationally recognized investment banking
firms selected by the Company for this purpose.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Common Stock” means shares of the common stock, par value $0.001 per share, of the Company
existing on the date of this Indenture or any other shares of Capital Stock of the Company into
which such Common Stock shall be reclassified or changed, including, subject to Section 10.06
below, in the event of a merger, consolidation or other similar transaction involving the Company
that is otherwise permitted hereunder in which the Company is not the surviving person, shares of
the common stock of such surviving corporation.



     “Company” means the party named as the “Company” in the preamble of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.



     “Company Notice” means a notice to Holders delivered pursuant to Section 3.02.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any Officer.



     “Continuing Director” means a director who either was a member of the Board of Directors on
the date of original issuance of the Securities or who becomes a member of the Board of Directors
subsequent to that date and whose appointment, election or nomination for election by the Company’s
shareholders is duly approved by a majority of the Continuing Directors on the Board of Directors
at the time of such approval, either by specific vote or by



2









 





approval of the proxy statement issued by the Company on behalf of the Board of Directors in
which such individual is named as nominee for director, it being understood that any director
appointed or nominated to fill a vacancy on the Board of Directors (without regard to the cause of
such vacancy) by any Continuing Director shall be deemed a Continuing Director until the next
annual meeting of the Company’s shareholders at which directors are elected.




     “Conversion Settlement Date” means (A) in the event the Company has not validly made a
Physical Settlement Election or the election set forth in Section 10.03(b)(ii), with respect to the
Settlement Amount owing by the Company as set forth in Section 10.03(a), the third Business Day
immediately following the date that the Settlement Amount is determined and (B) with respect to
Settlement Shares owing by the Company in the event the Company has validly made a Physical
Settlement Election as set forth in Section 10.03(b), the third Business Day immediately following
the Conversion Date for such Securities, except that in respect of Securities as to which a make
whole premium will be added to the Applicable Conversion Rate pursuant to Section 10.01(c) with a
Conversion Date prior to September 30, 2027, the Conversion Settlement Date for the Settlement
Shares (other than the Settlement Shares represented by the make whole premium) shall be the third
Business Day following the Conversion Date, and the Conversion Settlement Date for the Settlement
Shares represented by the make whole premium shall be the later of (x) the third Business Day
following the Conversion Date and (y) the relevant effective date described in Section 10.01(c) on
which the amount of the make whole premium is determined. In the event the Company has made the
election set forth in Section 10.03(b)(ii), the Conversion Settlement Date shall be determined in
the manner approved by a majority of Holders.



     “Corporate Trust Office” means the designated office of the Trustee at which at any time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 225 Asylum Street, 23rd Floor, Hartford, CT 06103, or such other address as
the Trustee may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address as a successor
Trustee may designate from time to time by notice to the Holders and the Company).



     “Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the Cash
Settlement Averaging Period, one-twentieth (1/20) of the product of (1) the Applicable Conversion
Rate on such Trading Day and (2) the Daily VWAP on such Trading Day.



     “Daily VWAP” means, for each of the 20 consecutive Trading Days during the Cash Settlement
Averaging Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “DLLR<equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from scheduled open of trading until the scheduled
close of trading of the primary trading session on that Trading Day (or if such volume-weighted
average price is unavailable, the market value of one share of the Company’s Common Stock on that
Trading Day determined, using a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for this purpose by the Company). The Daily VWAP will
be determined without regard to after hours trading or any other trading outside of the regular
trading session trading hours.



3









 





     “Default” means any event that is, or after notice or passage of time, would be, an Event of
Default.



     “DTC” means The Depository Trust Company.



     “Ex-Dividend Date” means the first date upon which a sale of the Common Stock, regular way on
the relevant exchange or in the relevant market for the Common Stock, does not automatically
transfer the right to receive the relevant distribution from the seller of the Common Stock to its
buyer.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.



     “Fair Market Value” or “fair market value” means the amount which a willing buyer would pay a
willing seller in an arm’s-length transaction.



     “Fundamental Change” means the occurrence at such time after the original issuance of the
Securities when any of the following has occurred:




     (1) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act
files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that
such person or group has become the direct or indirect “beneficial owner,” as defined in
Rule 13d-3 under the Exchange Act, of shares of Common Stock representing more than 50% of
the Voting Stock; or




     (2) the first day on which a majority of the members of the Board of Directors does not
consist of Continuing Directors; or




     (3) a consolidation, merger or binding share exchange, or any conveyance, transfer,
sale, lease or other disposition of all or substantially all of the Company’s properties and
assets to another person, other than:




     (a) any transaction (i) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the Company’s Capital
Stock or (ii) pursuant to which holders of the Company’s Capital Stock immediately
prior to such transaction have the entitlement to exercise, directly or indirectly,
50% or more of the total Voting Stock of the continuing or surviving or successor
person immediately after giving effect to such issuance; or




     (b) any merger, share exchange, transfer of assets or similar transaction
solely for the purpose of changing the Company’s jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of outstanding shares of
Common Stock, if at all, solely into shares of common stock, ordinary shares or
American Depositary Shares of the surviving entity or a direct or indirect parent of
the surviving corporation; or




     (c) any consolidation or merger with or into any Subsidiary, so long as such
merger or consolidation is not part of a plan or a series of transactions



4









 







designed to or having the effect of merging or consolidating with any other
person;




     (d) a Termination of Trading; or




     (e) the holders of Common Stock approve any plan or proposal for the Company’s
liquidation.



The term “person” as used in this definition includes any syndicate or group that would be deemed
to be a “person” under Section 13(d)(3) of the Exchange Act.




     “Global Securities” means Securities that are in the form of the Securities attached hereto as
Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a
nominee thereof, and to the extent that such Securities are required to bear the Legend required by
Section 2.06(g), such Securities shall be in the form of a 144A Global Security.



     “Holder” or “Securityholder” means a person in whose name a Security is registered on the
Registrar’s books.



     “Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.



     “Interest” means interest payable on each Security pursuant to Section 1 of the Securities.



     “Interest Payment Date” means April 1 and October 1 of each year, commencing on April 1,
2010.



     “Interest Record Date” means March 15 and September 15 of each year.



     “Issue Date” of any Security means the date on which the Security was originally issued or
deemed issued as set forth on the face of the Security.



     “Market Disruption Event” means, for the purposes of determining the Settlement Amount, (i) a
failure by NASDAQ or, if the Common Stock is not then listed on NASDAQ, by the principal other U.S.
national or regional securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a U.S. national or regional securities exchange, by the principal other
market on which the Common Stock is then traded, to open for trading during its regular trading
session, or (ii) the occurrence or existence before 1:00 p.m., New York City time, on any Trading
Day for the Common Stock for an aggregate one half hour period of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the stock
exchange or otherwise) in the Common Stock or in any options, contracts or future contracts
relating to the Common Stock.



     “NASDAQ” means the NASDAQ Global Select Market.



5









 





     “Officer” means the Chairman of the Board, the President, any Senior Vice President, Executive
Vice President or Vice President, the Chief Financial Officer, the Treasurer or the Secretary of
the Company.



     “Officer’s Certificate” means a written certificate containing the information specified in
Sections 12.04 and 12.05, signed in the name of the Company by any Officer (solely in his or her
capacity as such), and delivered to the Trustee. An Officer’s Certificate given pursuant to
Section 4.03 shall be signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company but need not contain the information specified in
Sections 12.04 and 12.05.



     “opening of business” means 9:00 a.m. (New York City time).



     “Opinion of Counsel” means a written opinion containing the information specified in Sections
12.04 and 12.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company
who is reasonably acceptable to the Trustee.



     “Optional Repurchase Date” has the meaning provided in Section 3.01(a) hereof.



     “Optional Repurchase Notice” has the meaning provided in Section 3.01(c) hereof.



     “Optional Repurchase Price” has the meaning provided in Section 3.01(a) hereof.



     “Physical Settlement Election” means the irrevocable election by the Company prior to
September 30, 2027, to satisfy its Conversion Obligation in respect of conversions of Securities
with a Conversion Date after the Physical Election Date solely in shares of Common Stock (plus cash
in lieu of fractional shares) in accordance with Section 10.03(b)(i) hereof.



     “Physical Settlement Election Date” means the date on which a Physical Settlement Election
Notice is delivered to the Trustee and Holders.



     “Physical Settlement Election Notice” means a written notice of a Physical Settlement Election
provided by the Company to the Trustee and each Holder of Securities.



     “Record Date” shall mean, with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is exchanged for or converted
into any combination of cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property (whether such date is
fixed by the Board of Directors or by statute, contract or otherwise).



     “Redemption Date” means, with respect to any Security or portion thereof to be redeemed in
accordance with the provisions of Section 11.01 hereof, the date fixed for such redemption in
accordance with the provisions of Section 11.01 hereof.



     “Redemption Price” has the meaning provided in Section 11.01(b) hereof.



6









 





     “Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee
within the Corporate Trust Office of the Trustee who has direct responsibility for the
administration of this Indenture and, for the purposes of Section 7.01(c)(2) and 7.05 shall also
mean any other officer of the Trustee to whom any corporate trust matter is referred because of
such person’s knowledge of and familiarity with the particular subject matter.



     “Restricted Security” means a Security required to bear the Legend.



     “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.



     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the primary U.S.
national or regional securities exchange or market on which the Common Stock is listed or admitted
to trading.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.



     “Security” means any of the Company’s 3.00% Senior Convertible Notes Due 2028, as amended or
supplemented from time to time, issued under this Indenture.



     “Securityholder” or “Holder” means a person in whose name a Security is registered on the
Registrar’s books.



     “Significant Subsidiary” means any subsidiary of the Company that is a significant subsidiary
at any determination date pursuant to Regulation S-X, Rule 1-02(w)(1) or (2).



     “Stated Maturity”, when used with respect to any Security, means April 1, 2028.



     “Stock Price” means the price per share of Common Stock paid in connection with a Fundamental
Change transaction pursuant to which a make whole premium will be added to the Applicable
Conversion Rate as set forth in Section 10.01(c) hereof, which shall be equal to (i) if Holders of
Common Stock receive only cash in such Fundamental Change transaction, the cash amount paid per
share of Common Stock and (ii) in all other cases, the average of the Closing Sale Prices of the
Common Stock on the five Trading Days immediately before, but not including, the effective date of
such Fundamental Change transaction.



     “Subsidiary” means any person of which at least a majority of the outstanding Voting Stock
shall at the time directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.



     “Termination of Trading” means the occurrence, at any time, of the Common Stock of the Company
(or other common stock into which the Securities are then convertible) not being listed for trading
on a U.S. national or regional securities exchange.



7









 





     “TIA” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture,
provided, however, that in the event the TIA is amended after such date, TIA means, to the extent
required by any such amendment, the TIA as so amended.



     “Trading Day” means a day on which (i) trading in securities generally occurs on NASDAQ or, if
the Common Stock is not then listed on NASDAQ, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not then
listed on a U.S. national or regional securities exchange, in the principal other market on which
the Common Stock is then traded and (ii) a Closing Sale Price for the Common Stock is available on
such securities exchange or market; provided that for the purposes of determining the amount of
payment upon conversion only, “Trading Day” means a day on which (i) there is no Market Disruption
Event and (ii) trading generally in the Common Stock occurs on NASDAQ or, if the Common Stock is
not then listed on NASDAQ, on the principal other U.S. national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national
or regional securities exchange, in the principal other market on which the Common Stock is then
traded. If the Common Stock (or other security for which a Closing Sale Price or Daily VWAP, as
applicable, must be determined) is not so traded, “Trading Day” means a Business Day.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of the Securities obtained by the
Trustee for $2,000,000 aggregate principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally recognized securities
dealers the Company selects, provided that if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, then one bid shall be used, provided
further that if no bids can reasonably be obtained, then for purposes of determining whether the
condition to conversion of the Securities set forth in Section 10.01(a)(2) has been satisfied, the
Trading Price per $1,000 principal amount of the Securities will be deemed to be less than 98% of
the product of the Closing Sale Price of the Common Stock and the Applicable Conversion Rate on
such date.



     “Trustee” means the party named as the “Trustee” in the preamble of this Indenture unless and
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.



     “Voting Stock” of a person means Capital Stock of such person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



     Section 1.02. Other Definitions.



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	Terms:	 	Defined in Section:
	“Act”

	 	Section 1.05(a)
	“additional interest”

	 	Section 6.01(k)
	“Agent Members”

	 	Section 2.12(e)(v)
	“Applicable Conversion Rate”

	 	Section 10.02(a)
	“Bankruptcy Law”

	 	Section 6.01(i)
	“Conversion Agent”

	 	Section 2.03
	“Conversion Date”

	 	Section 10.02(d)
	“Conversion Notice”

	 	Section 10.02(c)
	“Conversion Obligation”

	 	Section 10.03(a)
	“Daily Excess Amount”

	 	Section 10.03(a)(i)(B)
	“Daily Settlement Amount”

	 	Section 10.03(a)(i)
	“Depositary”

	 	Section 2.01(a)
	“DTC”

	 	Section 2.01(a)
	“effective date”

	 	Section 10.01(c)
	“Event of Default”

	 	Section 6.01
	“Exchange Property”

	 	Section 10.06(a)
	“Fiscal Quarter”

	 	Section 10.01(a)(i)
	“Fundamental Change Repurchase Date”

	 	Section 3.02(a)
	“Fundamental Change Repurchase Notice”

	 	Section 3.02(c)
	“Fundamental Change Repurchase Price”

	 	Section 3.02(a)
	“Indemnitees”

	 	Section 7.07(c)
	“legal holiday”

	 	Section 12.08
	“Legend”

	 	Section 2.06(g)
	“Losses”

	 	Section 7.07(c)
	“Measurement Period”

	 	Section 10.01(a)(ii)
	“Notice of Default”

	 	Section 6.01
	“Paying Agent”

	 	Section 2.03
	“QIBs”

	 	Section 2.01(b)
	“Registrar”

	 	Section 2.03
	“Rule 144A Information”

	 	Section 4.06
	“Settlement Amount”

	 	Section 10.03(a)
	“Settlement Shares”

	 	Section 10.03(b)
	“Spin Off”

	 	Section 10.04(c)
	“successor company”

	 	Section 5.01(a)
	“Trigger Event”

	 	Section 10.04(c)






     Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the following meanings:



     “Commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Securityholder.



     “indenture to be qualified” means this Indenture.



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     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company.



     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.



     Section 1.04. Rules of Construction. Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from time to time;




     (3) “or” is not exclusive;




     (4) “including” means including, without limitation;




     (5) words in the singular include the plural, and words in the plural include the
singular; and




     (6) references to Sections and Articles are to references to Sections and Articles of
this Indenture.



     Section 1.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company, as described
in Section 12.02. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The
fact and date of the execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.



10









 




     (c) The principal amount and serial number of any Security and the ownership of Securities
shall be proved by the register for the Securities.


     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.


     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.


ARTICLE 2
The Securities


     Section 2.01. Form and Dating. (a) The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibits A and B, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication. The Securities may, but need not, have the corporate seal of the Company or a
facsimile thereof affixed thereto or imprinted thereon.


(b) 144A Global Securities. Securities offered and sold within the United States to qualified
institutional buyers as defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued
initially in the form of a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company (“DTC”) or the nominee thereof (DTC, or any successor thereto,
and any such nominee being hereinafter referred to as the “Depositary”), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of
the 144A Global Securities may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary as hereinafter provided.


11








 





     (c) Global Securities in General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed in the Schedule of
Increases and Decreases of Global Security attached thereto and that the aggregate amount of
outstanding Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, repurchases, redemptions and conversions.



     Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented thereby shall be made
by the Trustee in accordance with instructions given by the Holder thereof as required by
Section 2.12 hereof, and shall be made on the records of the Trustee and the Depositary.



     (d) Book-Entry Provisions. This Section 2.01(d) shall apply only to Global Securities
deposited with or on behalf of the Depositary.



     The Company shall execute and the Trustee shall, in accordance with this Section 2.01(d),
authenticate and deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depositary or a nominee thereof, (b) shall be delivered by the Trustee to the
Depositary or held by the Trustee pursuant to the Depositary’s instructions and (c) shall be
substantially in the form of Exhibit A attached hereto.



     (e) Certificated Securities. Securities not issued as interests in the Global Securities
shall be registered in the name of the Holder and issued in certificated form substantially in the
form of Exhibit B attached hereto.



     Section 2.02. Execution and Authentication. The Securities shall be executed on behalf of the
Company by one Officer. The signature of such Officer on the Securities may be manual or
facsimile.



     Securities bearing the manual or facsimile signature of an individual who was, at the time of
the execution of the Securities, an Officer shall bind the Company, notwithstanding that such
individual has ceased to hold such office prior to the authentication and delivery of such
Securities or did not hold such office at the date of authentication of such Securities.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder.



     The Trustee shall authenticate and deliver the Securities for original issue in an aggregate
principal amount of up to $120,000,000 upon one or more Company Orders without any further action
by the Company. The aggregate principal amount of the Securities due at the Stated Maturity
thereof outstanding at any time may not exceed the amount set forth in the foregoing sentence.



12









 





     Notwithstanding the foregoing, the Company may, without the consent of any holders of
Securities, reopen the Securities and issue additional Securities hereunder with the same terms and
with the same CUSIP number as the Securities initially issued hereunder in an unlimited aggregate
principal amount, which will form the same series with the Securities initially issued hereunder so
long as such additional Securities are fungible with the Securities initially issued hereunder for
U.S. federal income tax purposes.



     The Securities shall be issued only in registered form without coupons and only in
denominations of $1,000 of principal amount and any integral multiple of $1,000.



     Section 2.03. Registrar, Paying Agent, Bid Solicitation Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented for registration of
transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for
purchase or payment (“Paying Agent”) and an office or agency where Securities may be presented for
conversion (“Conversion Agent”). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more co-registrars, one or more
additional paying agents, one or more additional bid solicitation agents and one or more additional
conversion agents. The term Paying Agent includes any additional paying agent, including any named
pursuant to Section 4.05. The term Conversion Agent includes any additional conversion agent,
including any named pursuant to Section 4.05.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent, Bid Solicitation Agent or co-registrar (in each case, if such Registrar, agent or
co-registrar is a person other than the Trustee). The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall promptly notify the Trustee of the
name and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent, or
Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of either of them
may act as Paying Agent, Registrar, Conversion Agent or co-registrar.



     The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in
connection with the Securities.



     Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and
shares of Common Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall promptly notify the Trustee of any Default by the Company in making any such
payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money and shares of Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying
Agent, it shall segregate the money and shares of Common Stock held by it as Paying Agent and hold
it as a separate trust fund. The Company at



13









 





any time may require a Paying Agent to pay all money and shares of Common Stock held by it to
the Trustee and to account for any funds and Common Stock disbursed by it. Upon doing so, the
Paying Agent shall have no further liability for the money or shares of Common Stock.




     Section 2.05. Securityholder Lists. The Trustee shall preserve the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee at least semiannually on June 20 and December 20
a listing of Securityholders dated as of the immediately preceding Interest Record Date and at such
other times as the Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.



     Section 2.06. Transfer and Exchange. (a) Subject to Section 2.12 hereof, upon surrender for
registration of transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations, of a like aggregate principal amount.
The Company shall not charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.



     At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount upon surrender of
the Securities to be exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.



     The Company shall not be required to make, and the Registrar need not register, transfers or
exchanges of Securities in respect of which a Fundamental Change Repurchase Notice has been given
and not withdrawn by the Holder thereof in accordance with the terms of this Indenture (except, in
the case of Securities to be purchased in part, the portion thereof not to be purchased).



     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers
of a Global Security shall, except as set forth in Section 2.12, be limited to transfers of such
Global Security in whole or in part, to the Depositary, to nominees of the Depositary or to a
successor of the Depositary or such successor’s nominee.



14









 





     (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



     (d) Except as otherwise set forth in this Indenture, any such action taken by a Holder shall
be conclusive and binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Security or any Security issued in exchange or
substitution therefor.



     (e) Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.



     (f) No Registrar shall be required to make registrations of transfer or exchange of Securities
during any periods designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.



     (g) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends relating to such restrictions imposed by the
securities laws set forth on the forms of Security attached hereto as Exhibits A and B setting
forth such restrictions (collectively, the “Legend”), or if a request is made to remove the Legend
on a Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the Registrar and the Trustee (if
not the same person as the Registrar) such satisfactory evidence, which shall include an opinion of
counsel, as may be reasonably required by the Company and the Registrar and the Trustee (if not the
same person as the Registrar), that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions of Rule 144 under
the Securities Act or that such Securities are not “restricted” within the meaning of Rule 144
under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by
the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the written direction of the
Company, shall authenticate and deliver a Security that does not bear the Legend. If the Legend is
removed from the face of a Security and the Security is subsequently held by the Company or an
Affiliate of the Company, the Legend shall be reinstated.



     Section 2.07. Replacement Securities. If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
such security and/or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a
certificate number not contemporaneously outstanding.



15









 





     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be purchased by the Company pursuant to Article 3 hereof,
the Company in its discretion may, instead of issuing a new Security, pay or purchase such
Security, as the case may be.



     Upon the issuance of any new Securities under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an additional obligation of the Company and shall be
entitled to all benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



     The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.



     Section 2.08. Outstanding Securities; Determinations of Holders’ Action. Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those
cancelled by it, those purchased pursuant to Section 2.07, those delivered to it for cancellation
and those described in this Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that
in determining whether the Holders of the requisite principal amount of Securities have given or
concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act
hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other act, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without limitation,
determinations pursuant to Article 6 and Article 9).



     If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     If the Paying Agent holds, in accordance with this Indenture, on the Business Day immediately
following a Fundamental Change Repurchase Date, on the Optional Repurchase Date, on the Redemption
Date or on Stated Maturity, money or securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then from and after such Fundamental Change Repurchase Date,
Optional Repurchase Date, Redemption Date or Stated Maturity, as the case may be, such Securities
shall cease to be outstanding and Interest and any Additional Amounts on such Securities shall
cease to accrue.



16









 





     If a Security is converted in accordance with Article 10, then from and after the date of
conversion, such Security shall cease to be outstanding, and Interest and any Additional Amounts
shall cease to accrue and the rights of the Holders therein shall terminate (other than the right
to receive the Settlement Amount).



     Section 2.09. Temporary Securities. Pending the preparation of Certificated Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Certificated Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the Officers executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.



     If temporary Securities are issued, the Company shall cause Certificated Securities to be
prepared without unreasonable delay. After the preparation of Certificated Securities, the
temporary Securities shall be exchangeable for Certificated Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such purpose pursuant to
Section 2.03, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Certificated Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as Certificated Securities.



     Section 2.10. Cancellation. All Securities surrendered for payment, purchase by the Company
pursuant to Article 3, conversion or registration of transfer or exchange shall, if surrendered to
any person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation
other than in connection with registrations of transfer or exchange or that any Holder has
converted pursuant to Article 10. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with the Trustee’s customary procedure.



     Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of the principal amount of the Security or any portion thereof, or the payment of
any Fundamental Change Repurchase Price in respect thereof, and Interest or Additional Amounts
thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.



     Section 2.12. Global Securities. (a) Notwithstanding any other provisions of this Indenture
or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made



17









 





only in accordance with Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a
beneficial interest in a Global Security for a Certificated Security shall comply with Section 2.06
and Section 2.12(a)(ii) below and Section 2.12(c) below, and (C) transfers of a Certificated
Security shall comply with Section 2.06, Section 2.12(a)(iii) and Section 2.12(a)(iv) below, as
applicable.





     (i) Transfer of Global Security. A Global Security may not be transferred, in whole or
in part, to any person other than the Depositary or a nominee or any successor thereof, and
no such transfer to any such other person may be registered; provided that this
Section 2.12(a)(i) shall not prohibit any transfer of a Security that is issued in exchange
for a Global Security but is not itself a Global Security. No transfer of a Security to any
person shall be effective under this Indenture or the Securities unless and until such
Security has been registered in the name of such person. Nothing in this Section 2.12(a)(i)
shall prohibit or render ineffective any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Section 2.12.




     (ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security. A beneficial interest in a Global Security may not be exchanged for
a Certificated Security except upon satisfaction of the requirements set forth in this
clause (ii) below and in Section 2.12(e) below. Upon receipt by the Trustee of a request to
transfer a beneficial interest in a Global Security in accordance with Applicable Procedures
for a Certificated Security in the form satisfactory to the Trustee, together with:




     (A) so long as the Securities are Restricted Securities, a certification, in
the form set forth in Exhibit C, that such beneficial interest in a Global Security
(1) is being transferred to a QIB in accordance with Rule 144A or (2) is being
transferred pursuant to and in compliance with Rule 144 under the Securities Act or
another exemption from the securities laws (which is documented to the Company’s
satisfaction);




     (B) written instructions from the Holder to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with respect to such
Global Security to reflect a decrease in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be decreased; and




     (C) if the Company or the Trustee so requests, an opinion of counsel or other
evidence reasonably satisfactory to it as to the compliance with the restrictions
set forth in the Legend, then the Trustee shall cause, or direct the Registrar to
cause, in accordance with the standing instructions and procedures existing between
the Depositary and the Registrar, the aggregate principal amount of the Securities
represented by the Global Security to be decreased by the aggregate principal amount
of the Certificated Security to be issued, shall issue such Certificated Security
and shall debit or cause to be debited to the account of the person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.



18









 






     (iii) Transfer and Exchange of Certificated Securities. When Certificated Securities
are presented to the Registrar with a request:



     (A) to register the transfer of such Certificated Securities; or



     (B) to exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Certificated
Securities surrendered for transfer or exchange:



     (1) shall be duly endorsed or accompanied by a written
instrument of transfer reasonably satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and



     (2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or pursuant
to clause (x), (y) or (z) below, and are accompanied by the following
additional information and documents, as applicable:



     (x) if such Certificated Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or



     (y) if such Certificated Securities are being
transferred to the Company, a certification to that effect
(in the form set forth in Exhibit C); or



     (z) if such Certificated Securities are being
transferred pursuant to an exemption from registration under
the Securities Act, (i) a certification to that effect (in
the form set forth in Exhibit C, if applicable) and (ii) if
the Company or the Trustee so requests, an opinion of counsel
or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the Legend.



     (iv) Restrictions on Transfer or Exchange of a Certificated Security for a Beneficial
Interest in a Global Security. A Certificated Security may not be transferred or exchanged
for a beneficial interest in a Global Security except upon satisfaction of the requirements
set forth below.



Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee, together with:


19








 






     (A) so long as the Securities are Restricted Securities, a certification, in
the form set forth in Exhibit C, that such Certificated Security (1) is being
transferred to the Company, (2) is being transferred to a QIB in accordance with
Rule 144A or (3) is being transferred pursuant to and in compliance with Rule 144
under the Securities Act or another exemption from the securities laws (which is
documented to the Company’s satisfaction);




     (B) written instructions from the Holder directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and records with respect to
such Global Security to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such increase; and




     (C) if the Company, or the Trustee so requests, an opinion of counsel or other
evidence reasonably satisfactory to it as to the compliance with the restrictions
set forth in the Legend, then the Trustee shall cancel such Certificated Security
and cause, or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar, the
aggregate principal amount of Securities represented by the Global Security to be
increased by the aggregate principal amount of the Certificated Security to be
exchanged, and shall credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Global Security equal to
the principal amount of the Certificated Security so cancelled. If no Global
Securities are then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officer’s
Certificate, a new Global Security in the appropriate principal amount.



     (b) Subject to the succeeding Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if
so required. Whenever any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set forth in Exhibit C,
dated the date of such surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to accept for such registration
of transfer or exchange any Security not so accompanied by a properly completed certificate.



     (c) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision
thereto). Any Security as to which such restrictions on transfer shall have expired in accordance
with their terms or shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in the event
that such restrictions on transfer have terminated by reason of a



20









 





transfer in compliance with Rule 144 under the Securities Act (or any successor provision
thereto), by an opinion of counsel having substantial experience in practice under the Securities
Act and otherwise reasonably acceptable to the Company and the Trustee, addressed to the Company
and the Trustee and in form acceptable to the Company and the Trustee, to the effect that the
transfer of such Security has been made in compliance with Rule 144 under the Securities Act or
such successor provision), be exchanged for a new Security, of like tenor and aggregate principal
amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under the Securities Act.
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.




     (d) As used in the preceding two paragraphs of this Section 2.12, the term “transfer” includes
any sale, pledge, transfer, loan, hypothecation, or other disposition of any Security.



     (e) The provisions of clauses (i), (ii), (iii), (iv), (v) and (vi) below shall apply only to
Global Securities:




     (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name of
any person other than the Depositary or one or more nominees thereof, provided that a Global
Security may be exchanged for Securities registered in the names of any person designated by
the Depositary in the event that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such Depositary
has ceased to be a “clearing agency” registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has
occurred and is continuing. Any Global Security exchanged pursuant to clause (i) above shall
be so exchanged in whole and not in part, and any Global Security exchanged pursuant to
clauses (ii) above may be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any portion thereof
shall be a Global Security; provided that any such Security so issued that is registered in
the name of a person other than the Depositary or a nominee thereof or any successor of
either of the foregoing pursuant to this paragraph shall not be a Global Security.




     (ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully registered form, shall have an aggregate principal amount
equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any Global Security to
be exchanged in whole shall be surrendered by the Depositary to the Registrar. With regard
to any Global Security to be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the principal amount thereof shall be reduced
by an amount equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable



21









 







on such exchange to or upon the order of the Depositary or an authorized representative
thereof.




     (iii) Subject to the provisions of clause (v) below, the registered Holder may grant
proxies and otherwise authorize any person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




     (iv) In the event of the occurrence of any of the events specified in clause (i) above,
the Company shall promptly make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form.




     (v) Neither any members of, or participants in, the Depositary (collectively, the
“Agent Members”) nor any other persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the Depositary
or such nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the operation of customary practices
of such persons governing the exercise of the rights of a Holder of any Security.




     (vi) Except as expressly set forth in this Indenture, including Sections
2.12(a)(ii) and 2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the
Company or the Registrar shall have any responsibility or obligation to any beneficial owner
in the Global Securities, a member of, or a participant in the Depositary or other person
with respect to the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the Global
Securities or with respect to the delivery to any participant, member, beneficial owner or
other person (other than the Depositary) of any notice or the payment of any amount, under
or with respect to such Global Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be given or made
only to or upon the order of the registered Holders (which shall be, in the case of a Global
Security, the Depositary or its nominee). The rights of beneficial owners in the Global
Securities shall be exercised only through the Depositary subject to the applicable rules
and procedures of the Depositary.




Other than as set forth in this Indenture, the Trustee, any Paying Agent, the
Conversion Agent, the Company and the Registrar may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect to
its members, participants and any beneficial owners. Except as expressly set forth
in this Indenture, including Sections 2.12(a)(ii) and 2.12(e), the Trustee, each
Paying Agent, the Conversion Agent, the Company and the Registrar shall be



22









 






entitled to deal with any depositary (including the Depositary), and any nominee
thereof, that is the Holder of any Global Securities as a Holder for all purposes of
this Indenture relating to such Global Securities (including the payment of
principal, Interest and any Additional Amounts and the giving of instructions or
directions by or to the owner or Holder of a beneficial ownership interest in such
Global Securities) as the sole Holder of such Global Securities and shall have no
obligations to the beneficial owners thereof. None of the Trustee, any Paying Agent,
the Conversion Agent, the Company or the Registrar shall have any responsibility or
liability for any acts or omissions of any such depositary with respect to such
Global Securities, for the records of any such depositary, including records in
respect of beneficial ownership interests in respect of any such Global Securities,
for any transactions between such depositary and any participant in such depositary
or between or among any such depositary, any such participant and/or any holder or
owner of a beneficial interest in such Global Securities or for any transfers of
beneficial interests in any such Global Securities.



     (f) The Trustee and the Registrar shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security (including any
transfers between or among Agent Members or beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express
requirements hereof.



     The Trustee shall have no responsibility for the actions or omissions of the Depositary, or
the accuracy of the books and records of the Depositary.



     Section 2.13. CUSIP Numbers. The Company may issue the Securities with one or more “CUSIP,”
“ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP,” “ISIN” or other similar numbers in notices as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a purchase and that reliance may be
placed only on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in the CUSIP, ISIN or other similar numbers.



     Section 2.14. Payment. If any Interest Payment Date, Stated Maturity, Fundamental Change
Repurchase Date, Optional Repurchase Date, Redemption Date, Conversion Settlement Date or other
date when payment is required to be made under this Indenture falls on a day that is not a Business
Day, then the required payment will be made on the next succeeding Business Day with the same force
and effect as if made on the date that the payment was due, and no additional Interest will accrue
on that payment for the period from and after the Interest Payment Date, Stated Maturity,
Fundamental Change Repurchase Date, Optional Repurchase Date, Redemption Date, Conversion
Settlement Date or other payment date, as the case may be, to that next succeeding Business Day.



23









 





ARTICLE 3

Repurchases




     Section 3.01. Repurchase of Securities at Option of the Holder on Certain Dates.



     (a) Holders of Securities shall have the right to require the Company to repurchase in whole
or in part (in principal amounts of $1,000 or an integral multiple thereof), on each of April 1,
2015, April 1, 2018 and April 1, 2023 (each, an “Optional Repurchase Date”) for cash equal to 100%
of the principal amount of the Securities to be repurchased plus unpaid interest (including
additional interest, if any) accrued to, but excluding, the Optional Repurchase Date (such amount,
the “Optional Repurchase Price”), subject to satisfaction by or on behalf of the Holder of the
requirements set forth below.



     (b) On or before the 25th day prior to each Optional Repurchase Date, the Company shall
provide a written notice by first class mail to the Trustee, any Paying Agent and all Holders (and
to beneficial owners as required by applicable law). The notice shall include a form of Optional
Repurchase Notice (as defined below) to be completed by the Holder and shall state:




     (i) the Optional Repurchase Date and the last date on which an Optional Repurchase
Notice may be submitted;




     (ii) the Optional Repurchase Price;




     (iii) the name and address of the Paying Agent;




     (iv) that Securities must be surrendered to the Paying Agent to collect payment of the
Optional Repurchase Price;




     (v) that the Optional Repurchase Price for any Security as to which an Optional
Repurchase Notice has been duly given will be paid within two Business Days after the later
of the Optional Repurchase Date or the time at which such Securities are surrendered for
repurchase;




     (vi) that, unless the Company defaults in making payment of the Optional Repurchase
Price, interest on Securities surrendered for repurchase will cease to accrue on and after
the Optional Repurchase Date;




     (vii) that Securities in respect of which an Optional Repurchase Notice is provided by
a Holder shall not be convertible in accordance with their terms even if otherwise
convertible unless such Holder validly withdraws such Optional Repurchase Notice in
accordance with the provisions of this Section 3.01; and




     (viii) the CUSIP number of the Securities.



     The Company shall also disseminate a press release through Dow Jones & Company, Inc. or
Bloomberg Business News containing the information specified in such notice or publish that
information in a newspaper of general circulation in The City of New York, or on the web site of



24









 





the Company, or through such other public medium as the Company deems appropriate at that
time.




     (c) A Holder may exercise its rights specified in this Section 3.01 upon delivery of a written
notice of repurchase (an “Optional Repurchase Notice”) to the Paying Agent during the period
beginning at any time from the opening of business on the date that is 20 days prior to the
applicable Optional Repurchase Date until the close of business on the third Business Day prior to
such Optional Repurchase Date, stating:




     (i) if such Securities are in certificated form, the certificate number(s) of the
Securities which the Holder will deliver to be repurchased;




     (ii) the portion of the principal amount of the Securities to be repurchased, in
integral multiples of $1,000; and




     (iii) that such Securities shall be repurchased pursuant to the applicable provisions
hereof and the Securities.



     The Paying Agent shall promptly notify the Company in writing of the receipt by it of any
Optional Repurchase Notice.



     (d) Book entry transfer of Securities in book entry form in compliance with the Applicable
Procedures or delivery of Securities in certificated form, together with all necessary
endorsements, to the Paying Agent at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Optional Repurchase Price. Holders electing to require the Company to
repurchase Securities must effect such transfer or delivery to the Paying Agent prior to the
Optional Repurchase Date to receive payment of the Optional Repurchase Price on or within two
Business Days after the Optional Repurchase Date. The Company shall pay the Optional Repurchase
Price within two Business Days after the later of the Optional Repurchase Date or the time of such
transfer or delivery of the Securities.



     (e) If a Holder delivers an Optional Repurchase Notice, it may not thereafter surrender
Securities for conversion unless such Optional Repurchase Notice is withdrawn as permitted below.
Any Optional Repurchase Notice may be withdrawn in whole or in part by a Holder by means of a
written notice of withdrawal delivered to the office of the Paying Agent prior to the close of
business on the Business Day prior to the Optional Repurchase Date specifying:




     (i) the Holder’s name;




     (ii) the principal amount of Securities in respect of which the Optional Repurchase
Notice is being withdrawn, which must be an integral multiple of $1,000;




     (iii) if the Securities subject to the notice of withdrawal are in certificated form,
the certificate number(s) of all Securities subject to the notice of withdrawal; and




     (iv) the principal amount of Securities, if any, that remains subject to the Optional
Repurchase Notice, which must be an integral multiple of $1,000.








25









 










     If Securities subject to the notice of withdrawal are in book-entry form, the above notices
must also comply with the Applicable Procedures.


     (f) On or before noon (New York City time) on the Optional Repurchase Date, the Company shall
deposit with the Paying Agent money sufficient to pay the aggregate Optional Repurchase Price of
the Securities to be purchased pursuant to this Section 3.01. If the Paying Agent holds, in
accordance with the terms of this Indenture, money sufficient to pay the Optional Repurchase Price
of such Securities on the Optional Repurchase Date, then on and after such date, such Securities
shall cease to be outstanding and interest on such Securities shall cease to accrue, and all rights
of the Holder of such Securities shall terminate (other than the right to receive the Optional
Repurchase Price (and additional interest, if any) due within two Business Days after the Optional
Repurchase Date). Such will be the case whether or not book entry transfer of the Securities in
book entry form is made and whether or not Securities in certificated form, together with the
necessary endorsements, are delivered to the Paying Agent.


     (g) Notwithstanding the foregoing, no Securities may be purchased by the Company in accordance
with the provisions of this Section 3.01 if there has occurred and is continuing an Event of
Default with respect to the Securities (other than a default in the payment of the Optional
Repurchase Price).


     (h) If an Optional Repurchase Date falls after an Interest Record Date and on or before the
related Interest Payment Date, then interest on the Securities payable on such Interest Payment
Date will be payable to the Holders in whose names the Securities are registered at the close of
business on such Interest Record Date.


     Section 3.02. Repurchase of Securities at Option of the Holder Upon a Fundamental Change. (a)
If a Fundamental Change occurs, each Holder shall have the right, at such Holder’s option, to
require the Company to repurchase for cash all of such Holder’s Securities, or any portion thereof
that is equal to or an integral multiple of $1,000 principal amount, at a repurchase price equal to
100% of the principal amount of the Securities repurchased, plus accrued and unpaid Interest and
any accrued and unpaid Additional Amounts on those Securities (the “Fundamental Change Repurchase
Price”) to, but not including, the date that is 30 calendar days following the date of the notice
of a Fundamental Change mailed by the Company pursuant to Section 3.02(b) (the “Fundamental Change
Repurchase Date”), subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.02(c). If the Fundamental Change Repurchase Date is on a date that is after an
Interest Record Date and on or prior to the corresponding Interest Payment Date, the Fundamental
Change Repurchase Price shall be 100% of the principal amount of the Securities repurchased and
shall include accrued and unpaid Interest and any accrued and unpaid Additional Amounts to, but not
including, the Fundamental Change Repurchase Date.


     (b) No later than 15 calendar days after the occurrence of a Fundamental Change, the Company
shall mail a Company Notice of the Fundamental Change (substantially in the form of Exhibit D) by
mail to the Trustee and to each Holder (and to beneficial owners if required by applicable law).
Simultaneously with providing such notice, the Company will issue a press release. The Company
Notice shall include a form of Fundamental Change Repurchase Notice to be completed by the Holder
and shall state:


26








 






     (i) briefly, the events causing a Fundamental Change and the date of such Fundamental
Change;




     (ii) the date by which the Fundamental Change Repurchase Notice pursuant to this
Section 3.02 must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;




     (iii) the Fundamental Change Repurchase Date;




     (iv) the Fundamental Change Repurchase Price;




     (v) the name and address of the Paying Agent and the Conversion Agent;




     (vi) the Applicable Conversion Rate;




     (vii) that the Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to Article 10 hereof only
if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms
of this Indenture;




     (viii) that the Securities must be surrendered to the Paying Agent (by effecting book
entry transfer of the Securities or delivering Certificated Securities, together with
necessary endorsements, as the case may be) to collect payment;




     (ix) that the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been duly given and not withdrawn shall be paid
promptly following the later of the Business Day immediately following the Fundamental
Change Repurchase Date and the time of surrender of such Security as described in
clause (viii);




     (x) briefly, the procedures the Holder must follow to exercise rights under this
Section 3.02;




     (xi) briefly, the conversion rights, if any, that exist on the Securities at the date
of the Company Notice and as a result of such Fundamental Change;




     (xii) the procedures for withdrawing a Fundamental Change Repurchase Notice;




     (xiii) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, Interest and any Additional Amounts on such Securities covered by any
Fundamental Change Repurchase Notice shall cease to accrue from and after the Fundamental
Change Repurchase Date; and




     (xiv) the CUSIP, “ISIN” or other similar number(s), as the case may be, of the
Securities.




27











 





     At the Company’s request, the Trustee shall give such Company Notice to each Holder in the
Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of
such Company Notice shall be prepared by the Company.



     (c) A Holder may exercise its rights specified in this Section 3.02 upon delivery of a written
notice of repurchase (a “Fundamental Change Repurchase Notice”) to the Paying Agent at any time on
or prior to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, stating:




     (i) if Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated Securities
have not been issued, the Fundamental Change Repurchase Notice shall comply with the
appropriate Depositary procedures for book-entry transfer;




     (ii) the portion of the principal amount of the Security which the Holder shall deliver
to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and




     (iii) that such Security shall be repurchased pursuant to the terms and conditions
specified in Section 4 of the Securities and in this Indenture.



     The delivery of such Security (together with all necessary endorsements) and the Fundamental
Change Repurchase Notice to the Paying Agent at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor;
provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.02 only if the Security (together with all necessary endorsements) so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth in the related
Fundamental Change Repurchase Notice.



     The Company shall repurchase from the Holder thereof, pursuant to this Section 3.02, a portion
of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.02
shall be consummated by the delivery of the Fundamental Change Repurchase Price promptly following
the later of the Business Day following the Fundamental Change Repurchase Date or the time of
delivery of such Security (together with all necessary endorsements or notifications of book-entry
transfer).



     Notwithstanding the foregoing, Holders shall not have the right to require the Company to
repurchase the Securities upon a Fundamental Change described in clause (3) of the definition
thereof if more than 90% of the consideration in the transaction or transactions constituting such
Fundamental Change consists of shares of common stock traded or to be traded immediately following
such Fundamental Change on a U.S. national or regional securities exchange, and, as a result of
such transaction or transactions, the Securities become convertible into such common stock (and any
rights attached thereto) subject to the settlement provisions of Section 10.03.



28









 





     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 3.02(c) shall have the right to
withdraw such Fundamental Change Repurchase Notice by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.03(b) at any time prior to the close of business on
the Business Day immediately preceding the Fundamental Change Repurchase Date.



     The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Repurchase Notice or written withdrawal thereof.



     Section 3.03. Effect of Fundamental Change Repurchase Notice. (a) Upon receipt by the Paying
Agent of the Fundamental Change Repurchase Notice specified in Section 3.02, the Holder of the
Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in Section 3.03(b)) thereafter be
entitled solely to receive the Fundamental Change Repurchase Price with respect to such Security
whether or not the Security is, in fact, properly delivered. Such Fundamental Change Repurchase
Price shall be paid to such Holder, subject to receipt of funds and/or securities by the Paying
Agent, promptly following the later of (x) the Business Day following the Fundamental Change
Repurchase Date with respect to such Security (provided the conditions in Section 3.02 have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 3.02. Securities in respect of which a Fundamental Change
Repurchase Notice has been given by the Holder thereof may not be converted pursuant to and to the
extent permitted by Article 10 hereof on or after the date of the delivery of such Fundamental
Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in Section 3.03(b).



     (b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent at any time, if received by the Paying Agent
prior to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date specifying:




     (i) the principal amount, if any, of such Security which remains subject to the
original Fundamental Change Repurchase Notice and which has been or shall be delivered for
purchase by the Company,




     (ii) if Certificated Securities have been issued, the certificate number, if any, of
the Security in respect of which such notice of withdrawal is being submitted (or, if
Certificated Securities have not been issued, that such withdrawal notice shall comply with
the appropriate Depositary procedures), and




     (iii) the principal amount of the Security with respect to which such notice of
withdrawal is being submitted.



     Section 3.04. Deposit of Fundamental Change Repurchase Price. Prior to 11:00 a.m. (local time
in the City of New York) on the Business Day following the Fundamental Change Repurchase Date the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and



29









 





hold in trust as provided in Section 2.04) an amount of cash in immediately available funds
sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Securities or
portions thereof which are to be purchased as of the Fundamental Change Repurchase Date.




     Section 3.05. Securities Purchased in Part. Any Certificated Security which is to be
purchased only in part (but any such partial purchase shall be in minimum principal amounts equal
to $1,000 or an integral multiple of $1,000) shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of
transfer satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not purchased.



     Section 3.06. Covenant to Comply with Securities Laws upon Purchase of Securities. When
complying with the provisions of Section 3.02 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions available under applicable law, the Company shall, if then
applicable, (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) and any other
applicable tender offer rules under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with all
Federal and state securities laws so as to permit the rights and obligations under Section 3.02 to
be exercised in the time and in the manner specified in Section 3.02.



     Section 3.07. Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed as provided in Section 10 of the Securities, together with
interest, if any, thereon (subject to the provisions of Section 7.01(f)), held by them for the
payment of the Fundamental Change Repurchase Price.



ARTICLE 4

Covenants




     Section 4.01. Payment of Securities. The Company shall make all payments in respect of the
Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture.
Any amounts of cash in immediately available funds or shares of Common Stock to be given to the
Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 11:00 a.m., New York
City time, by the Company on the applicable payment date. The principal amount of, and Interest
and any Additional Amounts on the Securities, and the Fundamental Change Repurchase Price and
amounts payable on conversion shall be considered paid on the applicable date due if on such date
(which, in the case of a Fundamental Change Repurchase Price, shall be on the Business Day
immediately following the applicable Fundamental Change Repurchase Date) the Trustee or the Paying
Agent holds, in accordance with this Indenture, cash or securities, if permitted hereunder,
sufficient to pay all such amounts then due.



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     Section 4.02. SEC and Other Reports. The Company shall deliver to the Trustee copies of its
annual report and of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act within 15 days
after it is required to file such annual and quarterly reports, information, documents and other
reports with the SEC; provided, however, that, to the extent permitted by law, any such document,
information and other reports filed and publicly available through the SEC’s EDGAR filing system
shall be deemed to have been received by the Trustee. The Company shall also comply with the other
provisions of TIA Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer’s Certificates).



     Section 4.03. Compliance Certificate. The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company (beginning with the Company’s fiscal year
ending June 30, 2010) an Officer’s Certificate, stating whether or not to the knowledge of the
signer thereof, the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which such Officer may have knowledge and otherwise comply
with Section 314(a)(4) of the TIA.



     The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
within 30 days of any executive officer of the Company becoming aware of any Default or Event of
Default, an Officer’s Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.



     Section 4.04. Further Instruments and Acts. The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.



     Section 4.05. Maintenance of Office or Agency. The Company shall maintain in the Borough of
Manhattan, the City of New York, an office or agency of the Trustee, Registrar, Paying Agent and
Conversion Agent where Securities may be presented or surrendered for payment, where Securities may
be surrendered for registration of transfer, exchange, purchase or conversion and where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be served. The
office of the Trustee, located at 100 Wall Street, Suite 1600, New York, New York 10005, shall
initially be such office or agency for all of the aforesaid purposes. Such office or agency need
not be the principal securities clearance or processing office of the Trustee. The Company shall
give prompt written notice to the Trustee of the location, and of any change in the location, of
any such office or agency (other than a change in the location of the office of the Trustee). If
at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.



31









 





     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes.



     Section 4.06. Delivery of Certain Information. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act until such time as neither the Securities nor any shares of
Common Stock issued upon conversion of the Securities are “restricted securities” within the
meaning of Rule 144 of the Securities Act, upon the request of a Holder or any beneficial owner of
Securities or Holder or beneficial owner of shares of Common Stock issued upon conversion thereof,
the Company shall promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial owner of Securities or Holder or beneficial owner of shares
of Common Stock issued upon conversion thereof, or to a prospective purchaser of any such security
designated by any such Holder or beneficial owner, as the case may be, to the extent required to
permit compliance by such Holder or beneficial owner with Rule 144A in connection with the resale
of any such security. “Rule 144A Information” shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner shall be
determined by the Company to the Company’s reasonable satisfaction.



     Section 4.07. Reserved.



     Section 4.08. Resale of the Securities. During the period of two years after the last date of
original issuance of the Securities, the Company shall not, and shall not permit any of its
Affiliates to, resell any of the Securities that constitute “restricted securities” under Rule 144
under the Securities Act that have been reacquired by any of them.



ARTICLE 5

Successor Company




     Section 5.01. When Company May Merge or Transfer Assets. The Company shall not consolidate
with or merge with or into any other person or convey, transfer or lease all or substantially all
its assets to another person, unless:



     (a) the resulting, surviving or transferee person (the “successor company”) shall be a
corporation organized and existing under (i) the laws of the United States of America, any state
thereof or the District of Columbia, or (ii) any other jurisdiction so long as the successor
company agrees to submit to service of process in any state in the United States of America or the
District of Columbia and, in the case of clause (ii) above, the successor company provides a full
and unconditional indemnity and provision for additional amounts for any incremental amounts
required to be withheld from payments or deliveries to Holders or beneficial owners of the
Securities under applicable United States or foreign laws, rules, regulations or authorities, and
any other incremental tax liabilities or costs of such Holders or beneficial owners as a result of
such merger or other transaction, and in each case the successor company (if not the Company) will
expressly assume, by a supplemental indenture, executed and delivered to the



32









 





Trustee, in form reasonably satisfactory to the Trustee, all of the Company’s obligations
under the Securities and this Indenture;




     (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;



     (c) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture
is required in connection with such transaction, such supplemental indenture, comply with this
Article 5; and



     (d) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders or beneficial owners of the Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such transaction and will be subject to U.S. federal
income tax in no greater amount, in substantially the same manner and at no earlier times as would
have been the case if the transaction had not occurred, except where any of the foregoing are
subject to the indemnification provided for in Section 5.01(a) above.



     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or another
Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company and its Subsidiaries, taken as a whole, shall be
deemed to be the transfer of all or substantially all of the properties and assets of the Company.



     The successor company formed by such consolidation or into which the Company is merged or the
successor company to which such conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a conveyance, transfer or lease of all or substantially all the
Company’s assets (in which case the Company will not be discharged from the obligation to pay the
principal amount of the Securities and Interest, including any Additional Amounts) and except for
obligations, if any, that the Company may have under a supplemental indenture, the Company shall be
discharged from all obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor company shall enter into a supplemental
indenture to evidence the succession and substitution of such successor company and such discharge
and release of the Company.



ARTICLE 6

Defaults and Remedies




     Section 6.01. Events of Default. So long as any Securities are outstanding, each of the
following shall be an “Event of Default”:



     (a) following the exercise by the Holder of the right to convert a Security in accordance with
Article 10 hereof, the Company fails to comply with its obligations to deliver the cash or shares
of Common Stock, if any, required to be delivered as part of the applicable Settlement Shares or
Settlement Amount on the applicable Conversion Settlement Date;



33









 





     (b) the Company defaults in its obligation to provide timely notice of a Fundamental Change to
the Trustee and each Holder as required under Section 3.02(b);



     (c) the Company defaults in the payment of the principal amount of any Security when due at
maturity, upon redemption, repurchase or otherwise (including, without limitation, upon the
exercise by a Holder of its right to require the Company to repurchase such Securities pursuant to
and in accordance with Section 3.02 hereof);



     (d) the Company defaults in the payment of any Interest, including any Additional Amounts,
when due and payable, and continuance of such default for a period of 30 days past the applicable
due date;



     (e) the Company fails to comply with its obligation to repurchase the Securities at the option
of a Holder pursuant to Section 3.01 or Section 3.02 hereof;



     (f) the Company fails to perform or observe any term, covenant or warranty or agreement in the
Securities or this Indenture (other than those referred to in clause (a) through clause (d) above)
and such failure continues for 60 days after receipt by the Company of a Notice of Default;



     (g) the Company fails to make any payment by the end of any applicable grace period after
maturity or acceleration of indebtedness for borrowed money of the Company or its Subsidiaries in
an amount in excess of $20,000,000 and continuance of such failure;



     (h) the Company or any of its Significant Subsidiaries fails to pay final judgments
aggregating in excess of $20,000,000, which judgments are not paid, discharged or stayed for a
period of 60 days;



     (i) the entry by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any of its Significant Subsidiaries, in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law (any
“Bankruptcy Law”) or (ii) a decree or order adjudging the Company or any Significant Subsidiary, a
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any Significant
Subsidiary, under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of any of their property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order described in clause (i) or (ii) above is unstayed and in effect for a period
of 60 consecutive days; and



     (j) (i) the commencement by the Company or any Significant Subsidiary, of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or (ii) the consent by the Company or any Significant Subsidiary, to the
entry of a decree or order for relief in respect of the Company or any Significant Subsidiary, in
an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any Significant Subsidiary, or
(iii) the filing by the Company or any



34









 





Significant Subsidiary, of a petition or answer or consent seeking reorganization or relief
under any applicable Bankruptcy Law, or (iv) the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment of or the taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Significant Subsidiary or of any substantial part of any of their property, or
(v) the making by the Company or any Significant Subsidiary, of a general assignment for the
benefit of creditors, or the admission by the Company or any Significant Subsidiary, in writing of
its inability to pay its debts generally as they become due.




     The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.



     Notwithstanding the foregoing, clause (e) above shall not constitute an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate principal amount of
the Securities at the time outstanding notify the Company and the Trustee, of such default and the
Company does not cure such default (and such default is not waived) within the time specified in
clause (e) above (subject to the provisions of Section 6.01(k) below) after actual receipt of such
notice. Any such notice must specify the default, demand that it be remedied and state that such
notice is a “Notice of Default.”



     (k) Notwithstanding anything to the contrary in this Indenture, to the extent elected by the
Company in its sole discretion, the sole remedy for an Event of Default described in
clause (e) above relating to the failure to comply with Section 4.02 hereof or the failure to
comply with Section 314(a)(1) of the TIA, if applicable, will for the first 180 days after the
occurrence of such an Event of Default consist exclusively of the right to receive additional
interest on the Securities at an annual rate equal to 0.25% of the principal amount of the
Securities (the “additional interest”). This additional interest will be payable on the same dates
and in the same manner as Interest accruing on the Securities. The additional interest will accrue
on all outstanding Securities from and including the date on which an Event of Default relating to
the failure to comply with Section 4.02 hereof or the failure to comply with Section 314(a)(1) of
the TIA first occurs to, but not including, the 180th day thereafter (or such earlier date on which
the Event of Default relating to the failure to comply with Section 4.02 or the failure to comply
with Section 314(a)(1) of the TIA shall have been cured or waived). On such 180th day (or earlier,
if the Event of Default relating to the failure to comply with Section 4.02 or the failure to
comply with Section 314(a)(1) of the TIA is cured or waived prior to such 180th day), such
additional interest will cease to accrue and, if the Event of Default relating to the failure to
comply with Section 4.02 or the failure to comply with Section 314(a)(1) of the TIA has not been
cured or waived prior to such 180th day, the Securities will be subject to acceleration as provided
in Section 6.02 hereof. The provisions of this paragraph will not affect the rights of Holders of
Securities in the event of the occurrence of any other Event of Default. In the event the Company
does not timely elect to pay the additional interest upon an Event of Default relating to the
failure to comply with Section 4.02 or the failure to comply with Section 314(a)(1) of the TIA in
accordance with this paragraph, the Securities will be subject to acceleration as provided in
Section 6.02 hereof. To make such election, the Company must notify the Holders, the Trustee and
the Paying Agent of such election on or prior



35









 





to the date such failure to comply with Section 4.02 or the failure to comply with
Section 314(a)(1) of the TIA becomes an Event of Default.




     Section 6.02. Acceleration. Subject to Section 6.01(k), if an Event of Default (other than an
Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company)
occurs and is continuing (the Event of Default not having been cured or waived), the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding by notice to the Company and the Trustee, may declare the
principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid
Additional Amounts on all the Securities to be immediately due and payable. Upon such a
declaration, such accelerated amount shall be due and payable immediately. If an Event of Default
specified in Section 6.01(i) or Section 6.01(j) with respect to the Company occurs and is
continuing, the principal amount of the Securities and any accrued and unpaid Interest and any
accrued and unpaid Additional Amounts on all the Securities shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in aggregate principal amount of the Securities at the time outstanding,
by notice to the Trustee and the Company (and without notice to any other Securityholder) may
rescind an acceleration and its consequences, and thereby waive the Events of Default giving rise
to such acceleration, if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the principal amount of
the Securities and any accrued and unpaid Interest and any accrued and any unpaid Additional
Amounts that have become due solely as a result of acceleration, which amounts, if such rescission
is effective, shall no longer be payable as a result of acceleration. No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereto.



     Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount of the Securities
and any accrued and unpaid Interest and any accrued and unpaid Additional Amounts on the Securities
or to enforce the performance of any provision of the Securities or this Indenture.



     The Trustee may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of, or acquiescence in, the Event of
Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.



     Section 6.04. Waiver of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder), may waive any existing or past Default and its consequences except
(1) an Event of Default described in clauses (a), (b), (c), (d) and (e) of Section 6.01 or (2) an
Event of Default in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected, which, in each case may be waived only upon the written
consent of each affected Holder. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right. This



36









 





Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the TIA.




     Section 6.05. Control by Majority. The Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided, that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent with such direction or
this Indenture. Prior to taking any action under this Indenture, the Trustee may require indemnity
satisfactory to it in its sole discretion against all losses and expenses caused by taking or not
taking such action.



     Section 6.06. Limitation on Suits. A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities, except in the case of a Default due to the non-payment of the
principal amount of the Securities, any accrued and unpaid Interest, any accrued and unpaid
Additional Amounts or any unpaid Settlement Amounts or Settlement Shares, unless:




     (1) the Holder gives to the Trustee written notice stating that a Default is
continuing;




     (2) the Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding make a written request to the Trustee to pursue the remedy;




     (3) the Trustee does not comply with the request within 60 days after receipt of such
notice, request and offer of security or indemnity; and




     (4) the Holders of a majority in aggregate principal amount of the Securities at the
time outstanding do not give the Trustee a direction inconsistent with the request during
such 60-day period.



A Securityholder may not use this Indenture to prejudice the rights of any other Securityholder or
to obtain a preference or priority over any other Securityholder.




     Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of the principal amount of the
Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Amounts in
respect of the Securities held by such Holder, on or after the respective due dates expressed in
the Securities or any Fundamental Change Repurchase Date, and to convert the Securities in
accordance with Article 10, or to bring suit for the enforcement of any such payment or the right
to convert on or after such respective dates, shall not be impaired or affected adversely without
the consent of such Holder.



     Section 6.08. Collection Suit by Trustee. If an Event of Default described in Section 6.01
clauses (a) through (d) (other than (b)) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the whole amount owing
with respect to the Securities and the amounts provided for in Section 7.07.



37









 





     Section 6.09. Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal amount of the Securities and any accrued and unpaid Interest and accrued and
unpaid Additional Amounts in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest and any accrued and unpaid Additional Amounts and to file such
other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel or any other amounts due the Trustee
under (Section 7.07)) and of the Holders allowed in such judicial proceeding, and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.



     The Company agrees not to object to the Trustee participating as a member of any official
committee of creditors of the Company as it deems necessary or advisable.



     Section 6.10. Priorities. Any money collected by the Trustee pursuant to this Article 6 and,
after an Event of Default, any money or other property distributable in respect of the Company’s
obligations under this Indenture, shall be paid out in the following order:




FIRST: to the Trustee (including any predecessor Trustee) for amounts due under
Section 7.07;




SECOND: to Securityholders for amounts due and unpaid on the Securities for the principal
amount of the Securities and any accrued and unpaid Interest and accrued and any unpaid
Additional Amounts, as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and




THIRD: the balance, if any, to the Company.



38









 





     The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each
Securityholder and the Company a notice that states the record date, the payment date and the
amount to be paid.



     Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture,
as permitted by the TIA.



     Section 6.12. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount of the Securities and any
accrued and unpaid Interest and any accrued and unpaid Additional Amounts on Securities, as
contemplated herein, or which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.



ARTICLE 7

Trustee




     Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.



     (b) Except during the continuance of an Event of Default:




     (i) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied duties shall be read into this Indenture against the
Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any such certificates or opinions which by any



39









 







provision hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine such certificates and opinions to determine whether or not
they conform to the requirements of this Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein. This
Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.



     (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:




     (i) this Section 7.01(c) does not limit the effect of Sections 7.01(b) and 7.01(g);




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly
excluded from this Indenture, as permitted by the TIA.




     (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.01.



     (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.



     (f) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder unless otherwise agreed in
writing with the Company (provided that any interest earned on money held by the Trustee in trust
hereunder shall be the property of the Company).



     (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.



     Section 7.02. Rights of Trustee. Subject to the provisions of Section 7.01:



     (a) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other



40









 





paper or document (whether in original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;




     (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officer’s Certificate;



     (c) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;



     (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith which it believes to be authorized or within its rights or powers conferred under
this Indenture;



     (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;



     (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred
therein or thereby;



     (g) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



     (h) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to, during regular business hours, examine the books, records
and premises of the Company, personally or by agent or attorney at the sole cost of the Company and
shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;



     (i) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article 4. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to Section 6.01(a), 6.01(c) or 6.01(d) or (ii) any Default or
Event of Default of which the Trustee shall have received written notification



41









 





from the Company or the Holders of at least 25% in aggregate principal amount of the
Securities, which notice specifically references this Indenture and the Securities.




     (j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other person employed to act hereunder;



     (k) the Trustee may request that the Company deliver an Officer’s Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person
authorized to sign an Officer’s Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and



     (l) the permissive rights of the Trustee to take certain actions under this Indenture shall
not be construed as a duty unless so specified herein.



     Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Section 7.10 and Section 7.11.



     Section 7.04. Trustee’s Disclaimer. The Trustee makes no representation as to, and shall have
no responsibility for, the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company’s use or application by the Company of the Securities or of the
proceeds from the Securities, it shall not be responsible for the correctness of any statement in
the registration statement for the Securities under the Securities Act or in any offering document
for the Securities, the Indenture or the Securities (other than its certificate of authentication),
or the determination as to which beneficial owners are entitled to receive any notices hereunder.



     Section 7.05. Notice of Defaults. If a Default or Event of Default occurs and if it is known
to the Trustee, the Trustee shall give to each Securityholder notice of the Default or Event of
Default within 90 days after it occurs, unless such Default or Event of Default shall have been
cured or waived before the giving of such notice. Notwithstanding the preceding sentence, except
in the case of a Default or Event of Default described in clauses (c) and (d) of Section 6.01, the
Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interest of the Securityholders. The
preceding sentence shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is
hereby expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be
deemed to have knowledge of a Default or Event of Default unless a Responsible Officer of the
Trustee has received written notice from the company or the Holders of at least 25% in aggregate
principal amount of the Securities of such Default or Event of Default, which notice specifically
references this Indenture and the Securities.



42









 





     Section 7.06. Reports by Trustee to Holders. Within 60 days after each December 31 beginning
with December 31, 2009, the Trustee shall mail to each Securityholder a brief report dated as of
such December 31 that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b). Any reports required by this Section 7.06 shall
be transmitted by mail to Securityholders pursuant to TIA Section 313(c).



     A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees
to notify the Trustee promptly whenever the Securities become listed on any securities exchange and
of any delisting thereof.



     Section 7.07. Compensation and Indemnity. The Company agrees:



     (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited (to the extent permitted by law) by any provision of law in
regard to the compensation of a trustee of an express trust);



     (b) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses, advances and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be attributable to its own
negligence, willful misconduct or bad faith; and



     (c) to indemnify and hold the Trustee and its directors, officers, agents and employees
(collectively, the “Indemnitees”) harmless from and against any and all claims, liabilities,
losses, damages, fines, penalties and expenses, including out-of-pocket, incidental expenses, legal
fees and expenses and the allocated costs and expenses of in-house counsel and legal staff
(“Losses”) that may be imposed on, incurred by or asserted against the Indemnitees or any of them
for following any instruction or other direction upon which the Trustee is authorized to rely
pursuant to the terms of this Indenture. In addition to and not in limitation of the immediately
preceding sentence, the Company also agrees to indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on, incurred by or asserted
against the Indemnitees or any of them in connection with or arising out of the Trustee’s
performance under this Indenture, provided the Trustee has not acted with negligence or engaged in
willful misconduct.



     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay the principal amount of, or the Fundamental Change Repurchase Price, Interest
or any Additional Amounts as the case may be, on particular Securities.



     The Company’s payment, reimbursement and indemnity obligations pursuant to this Section 7.07
shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee and the termination of this Indenture for any reason. In addition to and without prejudice
to its rights hereunder, when the Trustee incurs expenses or renders services in



43









 





connection with an Event of Default specified in Section 6.01(i) or Section 6.01(j), the
expenses, including the reasonable charges and expenses of its counsel and the compensation for
services payable pursuant to Section 7.07(a), are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or similar laws.




     For the purposes of this Section 7.07, the “Trustee” shall include any predecessor Trustee;
provided, however, that except as may be otherwise agreed among the parties, the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.



     Section 7.08. Replacement of Trustee. The Trustee may resign at any time by so notifying the
Company; provided, however, that no such resignation shall be effective until a successor Trustee
has accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company shall remove the Trustee if:



     (a) the Trustee fails to comply with Section 7.10;



     (b) the Trustee is adjudged bankrupt or insolvent;



     (c) a receiver or public officer takes charge of the Trustee or its property; or



     (d) the Trustee otherwise becomes incapable of acting.



If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor
Trustee.




     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.



     If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor Trustee.



     If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     So long as no Default or Event of Default shall have occurred and be continuing, if the
Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor



44









 





Trustee, effective as of a date at least 30 days after delivery of such Resolution to the
Trustee, and (ii) an instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee in accordance with this Indenture, the Trustee shall be deemed to have
resigned as contemplated in this Section 7.08, the successor Trustee shall be deemed to have been
accepted as contemplated in this Indenture, all as of such date, and all other provisions of this
Indenture shall be applicable to such resignation, appointment and acceptance.




     Section 7.09. Successor Trustee by Merger. Any corporation or association into which the
Trustee in its individual capacity may be merged or converted or with which it may be consolidated
or to which it transfers all or substantially all of its corporate trust business or assets, or any
corporation or association resulting from any merger, conversion or consolidation to which the
Trustee in its individual capacity may be sold or otherwise transferred, shall be the Trustee
hereunder without further act.



     Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or any parent holding company)
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).



     Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 8

Discharge of Indenture




     Section 8.01. Discharge of Liability on Securities. When (i) the Company causes to be
delivered to the Trustee all outstanding Securities (other than Securities replaced or repaid
pursuant to Section 2.07) for cancellation or (ii) all outstanding Securities have become due and
payable (whether on conversion, maturity, redemption, repurchase or otherwise) and the Company
deposits with the Trustee cash and, if applicable, shares of Common Stock sufficient to pay all
amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to
Section 2.07), and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 7.07, cease to be of further effect. The
Trustee shall join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officer’s
Certificate and Opinion of Counsel and at the cost and expense of the Company.



     Section 8.02. Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company upon written request any money or securities held by them for the payment of any amount
with respect to the Securities that remains unclaimed for one year, subject to applicable abandoned
property law.



45









 





     After return to the Company, Holders entitled to the money or securities must look to the
Company for payment as general creditors unless an applicable abandoned property law designates
another person and the Trustee and the Paying Agent shall have no further liability to the
Securityholders with respect to such money or securities for that period commencing after the
return thereof.



     Section 8.03. Application of Trust Money. The Trustee shall hold in trust all money and other
consideration deposited with it pursuant to Section 8.01 and shall apply such deposited money and
other consideration through the Paying Agent and in accordance with this Indenture to the payment
of amounts due on the Securities. Money and other consideration so held in trust is subject to the
Trustee’s rights under Section 7.07.



ARTICLE 9

Amendments




     Section 9.01. Without Consent of Holders. The Company and the Trustee may modify or amend
this Indenture or the Securities without the consent of any Securityholder to:



     (a) add guarantees with respect to the Securities or secure the Securities;



     (b) add to the covenants of the Company or Events of Default for the benefit of the Holders of
Securities;



     (c) surrender any right or power herein conferred upon the Company;



     (d) provide for the assumption by a successor company of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale or lease
pursuant to Article 5 or Section 10.06 hereof;



     (e) comply with the requirements of the SEC in order to effect or maintain the qualification
of this Indenture or any supplemental indenture under the TIA;



     (f) cure any ambiguity or to correct or supplement any provision herein which may be
inconsistent with any other provision herein;



     (g) make other changes to this Indenture or forms or terms of the Securities so long as no
such change individually or in the aggregate with all other such changes has or will have a
material adverse effect on the interests of the Holders of the Securities;



     (h) establish the terms or form of Securities (substantially in the form of Exhibit B);



     (i) evidence and provide for the acceptance of the appointment under this Indenture of a
successor Trustee in accordance with the terms of this Indenture; or



     (j) provide for uncertificated Securities in addition to or in place of certificated
Securities; provided, however, that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code.



46









 





     Section 9.02. With Consent of Holders. Except as provided below in this Section 9.02 and in
Section 9.01, this Indenture or the Securities may be amended, modified or supplemented, and
noncompliance in any particular instance with any provision of this Indenture or the Securities may
be waived, in each case with the written consent of the Holders of at least a majority of the
principal amount of the Securities at the time outstanding.



     Without the written consent or the affirmative vote of each Holder of Securities affected
thereby, an amendment, supplement or waiver under this Section 9.02 may not:



     (a) reduce the principal amount of or change the Stated Maturity of any Security;



     (b) reduce the Fundamental Change Repurchase Price or Optional Repurchase Price or any amount
payable upon redemption of any Security or change the time at which or circumstances under which
the Securities may or shall be repurchased or redeemed;



     (c) change the currency in which any Security or Interest, including any Additional Amounts
thereon, or the Fundamental Change Repurchase Price or Optional Repurchase Price thereof is
payable;



     (d) reduce the rate of accrual for, or extend the time for payment of Interest, including any
Additional Amounts on any Security;



     (e) impair the right of any Holder to institute suit for the enforcement of any payment on or
with respect to any Security;



     (f) impair the right of the Holders of the Securities to convert any Security as provided in
Article 10 or reduce the number of shares or other consideration due upon conversion, except as
otherwise permitted pursuant to Article 5 or Section 10.06 hereof;



     (g) change the Company’s obligation to maintain an office or agency in the places and for the
purposes specified in this Indenture;



     (h) amend or modify any of the provisions of this Section, or reduce the percentage of the
aggregate principal amount of outstanding Securities required to amend, modify, supplement or waive
a provision of the Indenture or the Securities, except to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of each outstanding
Security affected thereby; or



     (i) reduce the percentage of the aggregate principal amount of the outstanding Securities the
consent of whose Holders is required for any such supplemental indenture entered into in accordance
with this Section 9.02 or the consent of whose Holders is required for any waiver provided for in
this Indenture.



     It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.



47









 





     After an amendment under this Section 9.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment.



     Section 9.03. Compliance With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall comply with the TIA as then in effect.



     Section 9.04. Revocation and Effect of Consents, Waivers and Actions. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting Holder’s Security,
even if notation of the consent, waiver or action is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s Security
or portion of the Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.



     Section 9.05. Notice of Amendments, Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article 9 may, and shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Securities.



     Section 9.06. Trustee to Sign Supplemental Indentures. The Trustee shall sign any
supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein
does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.



     Section 9.07. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



ARTICLE 10

Conversions




     Section 10.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this Article 10, a Holder of a Security shall have the right, at such Holder’s option, to
convert all or any portion (if the portion to be converted is $1,000 principal amount or an
integral multiple thereof) of such Security prior to the close of business on the second Business
Day immediately preceding Stated Maturity into cash and shares of Common Stock, if applicable,
based on the Applicable Conversion Rate only as follows:



48









 






     (i) before September 30, 2027, during any calendar quarter of the Company (a “Calendar
Quarter”) commencing after the calendar quarter ending December 31, 2009 (and only during
such Calendar Quarter), if the Closing Sale Price of the Common Stock for at least 20
Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day
of the immediately preceding Calendar Quarter is more than 130% of the Applicable Conversion
Price in effect on such last Trading Day;




     (ii) during the five Business Days immediately following any five consecutive Trading
Day period (the “Measurement Period”) in which the Trading Price per $1,000 original
principal amount of the Securities (as determined following a request by a Holder of the
Securities in accordance with the procedures described below) for each day of such
Measurement Period was less than 98% of the product of the Closing Sale Price of the Common
Stock and the Applicable Conversion Rate on each such day. The Trustee or another party
appointed by the Trustee will, on the Company’s behalf, determine if the Securities are
convertible as a result of the Trading Price of the Securities and notify the Company and
the Trustee if the Trustee has appointed another party to determine if the Securities are
convertible pursuant to this clause (2); provided, that the Trustee or such other person
appointed by the Trustee shall have no obligation to determine the Trading Price of the
Securities unless the Company has requested such determination and the Company shall have no
obligation to make such request unless requested to do so in writing by a Holder of the
Security. Upon making any such request, any such requesting Holder shall provide reasonable
evidence that (A) such requesting Holder is a Holder of the Security as of the date of such
notice, and (B) the Trading Price per $1,000 principal amount of Securities would be less
than 98% of the product of the Closing Sale Price of the Common Stock and the Applicable
Conversion Rate on that day. At such time, the Company shall instruct the Trustee to
determine the Trading Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 original principal amount of the
Securities is greater than or equal to 98% of the product of the Closing Sale Price of the
Common Stock and the Applicable Conversion Rate;




     (iii) any time on or after September 30, 2027 and prior to the close of business on the
second Business Day immediately preceding Stated Maturity;




     (iv) if the Company calls any or all of the Securities for redemption pursuant to
Article 11, at any time prior to the close of business on the second Business Day
immediately prior to the applicable Redemption Date;




     (v) as provided in clause (b) of this Section 10.01.



     The Company or, if applicable, the Conversion Agent (in the case of a conversion pursuant to
clause (i) above) or the Trustee (in the case of a conversion pursuant to clause (2) above) on
behalf of the Company, shall determine on a daily basis during the time periods specified in
Section 10.01(a)(i) or, following a request by a Holder of Securities in accordance with the
procedures specified in Section 10.01(a)(ii), whether the Securities shall be convertible as a
result of the occurrence of an event specified in such Sections and, if the Securities shall be so
convertible, the Company, the Conversion Agent or the Trustee, as



49









 





applicable, shall promptly deliver to the Conversion Agent, the Trustee or the Company, as
applicable, written notice thereof. Whenever the Securities shall become convertible pursuant to
this Section 10.01 (as determined in accordance with this Section 10.01), the Company or, at the
Company’s request, the Trustee in the name and at the expense of the Company, shall promptly notify
the Holders of the event triggering such convertibility in the manner provided in Section 12.02, or
the Company shall promptly disseminate a press release and use its reasonable efforts to post the
information on its website or otherwise publicly disclose the information. Any notice so given
shall be conclusively presumed to have been duly given, whether or not the Holder receives such
notice.




     (b) In the event that:




     (1) (A) the Company distributes to all or substantially all holders of Common Stock
rights or warrants entitling them to purchase, for a period expiring within 60 days after
the date of such distribution, Common Stock at less than the average of the Closing Sale
Prices of the Common Stock for the five consecutive Trading Days ending on the Trading Day
immediately preceding the public announcement date for such distribution; or (B) the Company
distributes to all or substantially all holders of Common Stock cash, debt securities,
rights or warrants to purchase the Company’s securities, or other assets (excluding
dividends or distributions described in Section 10.04(a)), which distribution has a
per share value as determined by the Board of Directors exceeding 10% of the average of the
Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on the
Trading Day immediately preceding the public announcement date of such distribution, then,
in either case, the Securities may be surrendered for conversion at any time on and after
the date that the Company gives notice to the Holders of such distribution, which shall be
not less than 30 calendar days prior to the Ex-Dividend Date for such distribution, until
the earlier of the close of business on the Business Day immediately preceding the
Ex-Dividend Date for such distribution or the date on which the Company announces that such
distribution shall not take place, even if the Securities are not otherwise convertible at
such time; provided that no Holder of a Security shall have the right to convert its
Securities if the Holder is entitled to participate in such distribution (based on the
Applicable Conversion Rate) without conversion; or




     (2) a Fundamental Change occurs prior to Stated Maturity (regardless of whether Holders
have a right to require the Company to repurchase the Securities upon such Fundamental
Change as set forth in Article 3), then the Securities may be surrendered for conversion at
any time from and after the date that is 30 calendar days prior to the anticipated effective
date of such transaction until and including the date that is 30 calendar days after the
actual effective date of such transaction (or, if such transaction also constitutes a
Fundamental Change pursuant to which Holders have a right to require the Company to
repurchase the Securities pursuant to Section 3.02, until the close of business on the
Business Day immediately preceding the applicable Fundamental Change Repurchase Date). The
Company shall notify Holders and the Trustee as promptly as practicable following the date
that it publicly announces the Fundamental Change transaction giving rise to the above
conversion right (but in no event less than 30 calendar days prior to the anticipated
effective date of such transaction).



50









 





     (c) If a Fundamental Change occurs prior to April 1, 2015 and a Holder elects to convert its
Securities in connection with such Fundamental Change (regardless of whether such Holder has the
right to require the Company to repurchase its Securities as set forth in Article 3), the Company
will pay, to the extent set forth in this Section 10.01(c), a make whole premium (the “make whole
premium”) by increasing the Applicable Conversion Rate of such Securities; provided that if the
Stock Price paid in connection with such Fundamental Change is greater than $150.00 or less than
$24.13 (subject in each case to adjustment as described below), no make whole premium shall be
added to the Applicable Conversion Rate. A conversion of the Securities will be deemed for these
purposes to be “in connection with” a Fundamental Change if the Conversion Notice is received by
the Conversion Agent from and including the date that is 30 calendar days prior to the anticipated
effective date of the Fundamental Change to the close of business on the Business Day immediately
preceding the applicable Fundamental Change Repurchase Date).



     The increase in the Applicable Conversion Rate as described in the immediately preceding
paragraph shall be determined by reference to the table attached as Schedule I hereto, based on the
effective date of such Fundamental Change transaction and the Stock Price paid in connection with
such transaction; provided that if the Stock Price is between two Stock Price amounts in the table
or such effective date is between two effective dates in the table, the make whole premium shall be
determined by a straight-line interpolation between the make whole premium set forth for the higher
and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year. The
“effective date” with respect to a Fundamental Change transaction means the date that a Fundamental
Change becomes effective.



     The Stock Prices set forth in the first row of the table in Schedule I hereto shall be
adjusted as of any date on which the Applicable Conversion Rate of the Securities is adjusted
pursuant to Section 10.04. The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the
Applicable Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Applicable Conversion Rate as so adjusted. The make
whole premium shall be adjusted in the same manner as the Applicable Conversion Rate as set forth
in Section 10.04.



     Notwithstanding the foregoing, in no event shall the Applicable Conversion Rate pursuant to
this clause (c) exceed 41.4422 per $1,000 principal amount of Securities, nor shall the amount of
the make whole premium exceed 6.9070 per $1,000 principal amount of Securities, in each case,
subject to adjustments in the same manner as the Applicable Conversion Rate as set forth in
Section 10.04.



     Section 10.02. Conversion Procedure; Applicable Conversion Rate; Fractional Shares. (a)
Subject to the Company’s rights under Section 10.01 and Section 10.03, each Security shall be
convertible at the office of the Conversion Agent into a combination of cash and fully paid and
nonassessable shares (calculated to the nearest 1/10,000th of a share) of Common Stock, if any, at
a rate (the “Applicable Conversion Rate”) equal to, initially, 34.5352 shares of Common Stock for
each $1,000 principal amount of Securities. The Applicable Conversion Rate shall be adjusted in
certain instances as provided in Section 10.04 hereof, but shall not be adjusted for any accrued
and unpaid Interest or any Additional Amounts. Upon conversion, no payment shall



51









 





be made by the Company with respect to any accrued and unpaid Interest, including any
Additional Amounts, unless, as described below, such conversion occurs between an Interest Record
Date and the Interest Payment Date to which such Interest Record Date relates, in which case the
Holders of the Securities on the Interest Record Date shall receive accrued and unpaid interest,
including any Additional Amounts, payable on the Securities on the applicable Interest Payment
Date. Instead, such amount shall be deemed paid by the applicable Settlement Amount or Settlement
Shares, as applicable, delivered upon conversion of any Security. In addition, no payment shall be
made in respect of dividends on the Common Stock with a record date prior to the Conversion Date.
The Company shall not issue any fraction of a share of Common Stock in connection with any
conversion of Securities, but instead shall, subject to Section 10.03 hereof, make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the Daily VWAP on the final
Trading Day of the Cash Settlement Averaging Period or, if the Company has made a valid Physical
Settlement Election, on the third Scheduled Trading Day before the Conversion Settlement Date.




     (b) At any time before September 30, 2027, the Company may (unless and until it terminates
such right) irrevocably make a Physical Settlement Election as set forth in Section 10.03(b)(i).



     (c) Before any Holder of a Security shall be entitled to convert the same, such Holder shall
(1) in the case of Global Securities, comply with the Applicable Procedures in effect at that time
for converting a beneficial interest in a Global Security, and in the case of Certificated
Securities, surrender such Securities, duly endorsed to the Company or in blank, at the office of
the Conversion Agent, and (2) give written notice to the Company in the form on the reverse of such
Certificated Security (the “Conversion Notice”) at said office or place that such Holder elects to
convert the same and shall state in writing therein the principal amount of Securities to be
converted (which shall be equal to or an integral multiple of $1,000 principal amount) and the name
or names (with addresses) in which such Holder wishes the certificate or certificates for Common
Stock included in the Settlement Amount, if any, or Settlement Shares, as applicable, to be
registered.



     Before any such conversion, a Holder also shall pay all taxes or duties, if any, as provided
in Section 10.07 and any amount payable pursuant to Section 10.02(h).



     If more than one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares of Common Stock, if any, that shall be deliverable upon conversion shall
be computed on the basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted thereby) so surrendered.



     (d) A Security shall be deemed to have been converted as of the close of business on the date
(the “Conversion Date”) that the Holder has complied with Section 10.02(c).



     (e) The Company shall, on the Conversion Settlement Date, to the extent applicable as set
forth in Section 10.03, (i) pay the cash component (including cash in lieu of any fraction of a
share to which such Holder would otherwise be entitled) of the Conversion Obligation determined
pursuant to Section 10.03 to the Holder of a Security surrendered for conversion, or such Holder’s
nominee or nominees, and (ii) issue, or cause to be issued, and deliver to the



52









 





Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates for the
number of full shares of Common Stock, if any, to which such Holder shall be entitled as part of
such Conversion Obligation. The Company shall not be required to deliver certificates for shares of
Common Stock while the stock transfer books for such stock or the security register are duly closed
for any purpose, but certificates for shares of Common Stock shall be issued and delivered as soon
as practicable after the opening of such books or security register, and the person or persons
entitled to receive the Common Stock as part of the applicable Settlement Amount or Settlement
Shares, as applicable, upon such conversion shall be treated for all purposes as the record holder
or holders of such Common Stock, as of the close of business on the applicable Conversion
Settlement Date.




     (f) In case any Security shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder
of the Security so surrendered, without charge to such Holder (subject to the provisions of
Section 10.07 hereof), a new Security or Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Securities.



     (g) By delivering the combination of cash and shares of Common Stock, if any, together with a
cash payment in lieu of any fractional shares to the Conversion Agent or to the Holder or such
Holder’s nominee or nominees, the Company shall have satisfied in full its Conversion Obligation
with respect to such Security, and upon such delivery, accrued and unpaid Interest, if any, and any
Additional Amounts, with respect to such Security shall be deemed to be paid in full rather than
canceled, extinguished or forfeited, and such amounts shall no longer accrue.



     (h) If a Securityholder delivers a Conversion Notice after the Interest Record Date for a
payment of Interest (including any Additional Amounts) but prior to the corresponding Interest
Payment Date, such Securityholder must pay to the Company, at the time such Securityholder
surrenders Securities for conversion, an amount equal to the Interest (including any Additional
Amounts), that has accrued and shall be paid on the related Interest Payment Date. The preceding
sentence shall not apply if (1) the Company has specified a Fundamental Change Repurchase Date or a
Redemption Date that is after the close of business on an Interest Record Date but on or prior to
the corresponding Interest Payment Date, (2) to the extent of overdue Interest (and any overdue
Additional Amounts), if any overdue Interest (and any overdue Additional Amounts) exists at the
time of conversion with respect to the Securities converted or (3) if a Holder converts its
Securities after the close of business on or after September 30, 2027.



     Section 10.03. Payment Upon Conversion. (a) In the event that the Company has not made a
Physical Settlement Election as set forth in clause (b)(i) below or the election set forth in
clause (b)(ii) below, upon conversion of Securities, the Company shall satisfy its obligation to
convert the Securities (the “Conversion Obligation”) by delivering to Holders surrendering
Securities for conversion, for each $1,000 principal amount of Securities, a settlement amount (the
“Settlement Amount”) equal to the sum of the Daily Settlement Amounts for each of the 20
consecutive Trading Days of the related Cash Settlement Averaging Period.




     (i) The “Daily Settlement Amount” for each of the 20 consecutive Trading Days of the
related Cash Settlement Averaging Period, shall consist of:



53









 






     (A) cash equal to the lesser of $50 and the Daily Conversion Value on such
Trading Day; and




     (B) to the extent the Daily Conversion Value on such Trading Day exceeds $50, a
number of shares of Common Stock equal to (x) the difference between such Daily
Conversion Value and $50 (such difference being referred to as the “Daily Excess
Amount”), divided by (y) the Daily VWAP for such day; provided, that to the extent
the aggregate number of shares the Company would otherwise be required to deliver
pursuant to the foregoing calculation as a part of the Settlement Amount, when taken
together with shares delivered upon previous conversions, if any, exceeds the
“aggregate share cap” (the maximum number of shares the Company may issue without
shareholder approval pursuant to NASDAQ Rule 5635, as amended from time to time,
subject to adjustment upon the occurrence of any of the events described in Section
10.04, then the Company will not deliver such excess number of shares unless in
accordance with NASDAQ Rule 5635 as amended from time to time, (i) the Company has
obtained the approval of its stockholders for the issuance of shares in excess of
the aggregate share cap, or (ii) the Company has obtained Holder consent to satisfy
the Company’s conversion obligation entirely in shares (plus cash in lieu of
fractional shares) pursuant to Section 10.03(b)(ii).




     (ii) The Settlement Amount will be delivered on the Conversion Settlement Date.



     (b) (i) At any time before September 30, 2027, the Company may (unless and until it
terminates such right as set forth in the last sentence of this Section 10.03(b)(i) irrevocably
make a Physical Settlement Election, in its sole discretion and without the consent of the Holders,
by valid delivery of a Physical Settlement Notice, to satisfy all Conversion Obligations arising
out of conversions of Securities after the Physical Settlement Election Date. In addition to the
giving of such Physical Settlement Election Notice, the Company shall disseminate a press release
through Dow Jones & Company, Inc. or Bloomberg Business News or another newswire service announcing
such Physical Settlement Election or publish such information in The Wall Street Journal or another
newspaper of general circulation in the City of New York or on the Company’s website. Upon any
such conversion following a valid Physical Settlement Election and the related Physical Settlement
Date, the Company shall, subject to the provisions of this Article 10, satisfy its Conversion
Obligation by delivering to converting Holders on the Conversion Settlement Date a number of shares
of Common Stock (the “Settlement Shares”) equal to the aggregate principal amount of Securities to
be converted divided by $1,000 and multiplied by the Applicable Conversion Rate on the Conversion
Date (which will include any increases to reflect any make whole premium as described under
Section 10.01(c) above); provided that no fractional shares shall be issued, and in lieu thereof,
the Company shall pay an amount in cash as set forth in Section 10.02 above. In the event the
Company elects to terminate its right to make a Physical Settlement Election prior to its exercise,
the Company may terminate such right upon notice of termination made in the manner required for a
Physical Settlement Notice.



54









 






     (ii) Notwithstanding the provisions of paragraph (a), the Company may, prior to making
such Physical Settlement Election, terminate its right to make such an election by notice to
the Trustee and the Holders, informing them of such termination. In the event the Company
has terminated its right to make a Physical Settlement Election, the Company may, upon
consent of the Holders of a majority in aggregate principal amount of the Notes (voting as a
single class), elect to satisfy its conversion obligation in cash, common stock or any
combination thereof, in any case determined in a manner approved by such Holders.



     If a Holder surrenders Securities for conversion and the Daily Conversion Value is being
determined at a time when the notes are convertible into other property in addition to or in lieu
of Common Stock, the Daily Conversion Value of each Security, and the non-cash portion, if any, of
the Daily Settlement Amount, will be determined based on the kind and amount of shares of stock,
securities or other property or assets (including cash or any combination thereof) that a holder of
a number of shares of the Company’s common stock equal to the Applicable Conversion Rate would have
owned or been entitled to receive in such transaction and the value thereof (in the case of assets
other than cash or traded securities, as determined by the Company’s board of directors) during the
Cash Settlement Averaging Period. If a holder elects to convert its Securities in connection with a
Fundamental Change, the applicable conversion rate will be subject to further adjustment as
described in Section 10.04.



     Section 10.04. Adjustment of Applicable Conversion Rate. The Applicable Conversion Rate shall
be adjusted, without duplication, from time to time by the Company in accordance with this
Section 10.04, except that the Company will not make any adjustment if Holders of Securities are
entitled to participate on the relevant distribution or payment date, as a result of holding the
Securities, in the transactions described in Sections 10.04(b), 10.04(c) and 10.04(d) below without
having to convert their Securities (based on the Applicable Conversion Rate in effect immediately
before the relevant Ex-Dividend Date):




     (a) If the Company, at any time or from time to time while any of the Securities are
outstanding, issues shares of Common Stock as a dividend or distribution on shares of Common
Stock, or if the Company effects a share split or share combination, then the Applicable
Conversion Rate will be adjusted based on the following formula:








     where:




			
	     CR0      =	 	the Applicable Conversion Rate in effect immediately prior to the
Ex-Dividend Date of such dividend or distribution, or the effective date of such share
split or share combination, as applicable;





55









 








			
	     CR’      =	 	the Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date or effective date of such share split or combination, as applicable;






			
	     OS0      =	 	the number of shares of Common Stock outstanding immediately before such
Ex-Dividend Date or effective date; and






			
	     OS’      =	 	the number of shares of Common Stock outstanding immediately before such
Ex-Dividend Date or effective date, but after giving effect to such dividend,
distribution, share split or combination, as applicable.






Such adjustment shall become effective immediately after the Ex-Dividend Date for such
dividend or distribution, or the effective date for such share split or share combination.
If any dividend or distribution of the type described in this Section 10.04(a) is declared
but not so paid or made, the Applicable Conversion Rate shall again be adjusted, as of the
date that is the earlier of (i) the public announcement of the non-payment of the dividend
or distribution and (ii) the date that the dividend or distribution was to be paid, to the
Applicable Conversion Rate which would then be in effect if such dividend or distribution
had not been declared.




     (b) If the Company, at any time or from time to time while any of the Securities are
outstanding, issues to all holders of Common Stock any rights, warrants or options entitling
them for a period of not more than 60 calendar days from the date of issuance of such
rights, warrants or options to subscribe for or purchase shares of Common Stock at an
exercise price per share of Common Stock less than the average of the Closing Sales Prices
of Common Stock for the 10 consecutive Trading Day period ending on the Business Day
immediately preceding the date of announcement of such issuance, the Applicable Conversion
Rate shall be adjusted based on the following formula:








     where:




			
	      CR0      =	 	the Applicable Conversion Rate in effect immediately prior to the
Ex-Dividend Date for such issuance;






			
	      CR’      =	 	the Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date;






			
	      OS0      =	 	the number of shares of Common Stock outstanding immediately before such
Ex-Dividend Date for such issuance;






			
	      X       =	 	the total number of shares of Common Stock issuable pursuant to such rights,
warrants or options; and






			
	      Y      =	 	the number of shares of Common Stock equal to the quotient of (A) the
aggregate price payable to exercise such rights, warrants or options




56









 






			
	 	 	
divided by (B) the average of the Closing Sale Prices of Common Stock for
the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the date of announcement of the issuance of such rights, warrants
or options.






To the extent such rights, warrants or options are not exercised or converted prior to the
expiration of the exercisability or convertability thereof, the Applicable Conversion Rate
shall be readjusted, as of such expiration date, to the Applicable Conversion Rate which
would then be in effect had the adjustments made upon the issuance of such rights, warrants
or options been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In the event that such rights, warrants or options are not so
issued, the Conversion Rate shall again be adjusted to be the Applicable Conversion Rate
which would then be in effect if such rights, warrants or options had not been issued. In
determining whether any rights, warrants or options entitle the Holders to subscribe for or
purchase shares of Common Stock at less than the average of the Closing Sale Prices of
Common Stock for the 10 consecutive Trading Day period ending on the Business Day
immediately preceding the date of announcement of such issuance, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken into account
any consideration received for such rights or warrants and the value of such consideration,
if other than cash, as shall be determined in good faith by the Board of Directors of the
Company.




With respect to any rights or warrants (the “Rights”) that may be issued or distributed
pursuant to any rights plans implemented by the Company after the date of this Indenture (a
“Rights Plan”), the Holders of Securities will receive, with respect to any shares of Common
Stock issued upon conversion, the Rights described therein (whether or not the Rights have
separated from the Common Stock at the time of conversion), subject to the limitations set
forth in and in accordance with any such Rights Plan; provided that if at the time of
conversion the Rights have separated from the shares of Common Stock in accordance with the
provisions of the Rights Plan so that Holders would not be entitled to receive any rights in
respect of the shares of Common Stock, if any, issuable upon conversion of the Securities as
a result of the timing of the Conversion Date, the Applicable Conversion Rate will be
adjusted as if the Company distributed to all holders of Common Stock securities
constituting such rights as provided in the first paragraph of this clause (b) of this
Section 10.04, subject to a corresponding readjustment to the Applicable Conversion Rate on
an equitable basis in the event that such Rights are later redeemed, repurchased,
invalidated or terminated. A further adjustment will occur as described in above in this
clause (b) of this Section 10.04 if such Rights become exercisable to purchase different
securities, evidences of indebtedness or assets, subject to a corresponding readjustment to
the Applicable Conversion Rate on an equitable basis in the event that such Rights are later
redeemed, repurchased, invalidated or terminated. Other than as specified in this
paragraph of this clause (b) of this Section 10.04, there will not be any adjustment to the
Applicable Conversion Rate as the result of the issuance of any Rights, the distribution of
separate certificates representing such Rights, the exercise or redemption of such Rights in
accordance with any Rights Plan or the termination or invalidation of any Rights.



57









 






     (c) If the Company, at any time or from time to time while the Securities are
outstanding, distributes shares of any class of Capital Stock of the Company, evidences of
indebtedness or other assets or property of the Company to all, or substantially all,
holders of its Common Stock, excluding:




     (i) dividends or distributions referred to in Section 10.04(a);




     (ii) rights, warrants or options referred to in Section 10.04(b);




     (iii) dividends or distributions paid exclusively in cash; and




     (iv) Spin-Offs (as defined below) to which the provisions set forth below in
this Section 10.04(c) shall apply;




then the Applicable Conversion Rate will be adjusted based on the following formula:








     where:




			
	      CR0      =	 	the Applicable Conversion Rate in effect immediately prior to the
Ex-Dividend Date for such distribution;






			
	      CR’      =	 	the Applicable Conversion Rate in effect immediately after such Ex-Dividend
Date for such distribution;






			
	      SP0      =	 	the average of the Closing Sale Prices of the Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and






			
	     FMV       =	 	the Fair Market Value (as determined in good faith by the Board of Directors
of the Company) of the shares of Capital Stock, evidences of indebtedness, assets or
property distributed with respect to each outstanding share of the Common Stock on the
earlier of the Record Date or the Ex-Dividend Date for such distribution.






Such adjustment shall become effective immediately prior to the opening of business on the
day following the Ex-Dividend Date for such distribution.




Where there has been a payment of a dividend or other distribution on the Common Stock of
shares of Capital Stock of any class or series, or similar equity interest, of or relating
to a Subsidiary or other business unit (a “Spin-Off”), the Applicable Conversion Rate in
effect immediately before 5:00 p.m., New York City time, on the 10th Trading Day immediately
following the effective date of the Spin-Off shall be increased based on the following
formula:








58









 








     where:




			
	      CR0      =	 	the Applicable Conversion Rate in effect on the 10th Trading Day
immediately following, and including, the effective date of the Spin-Off;






			
	      CR’       =	 	the Applicable Conversion Rate in effect immediately after the 10th Trading
Day immediately following, and including, the effective date of the Spin-Off;






			
	      FMV0      =	 	the average of the Closing Sale Prices of the Capital Stock or similar
equity interest distributed to holders of Common Stock applicable to one share of
Common Stock over the first 10 consecutive Trading Day period after, and including, the
effective date of the Spin-Off; and






			
	     MP0      =	 	the average of the Closing Sale Prices of Common Stock over the first 10
consecutive Trading Day period after the effective date of the Spin-Off.






The adjustment to the Applicable Conversion Rate under the preceding paragraph will occur on
the 10th Trading Day from, and including, the effective date of the Spin-Off; provided that
in respect of any conversion within the 10 Trading Days following the effective date of any
Spin-Off, references within this Section 10.04(c) to “10 Trading Days” shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the effective date
of such Spin-Off and the Conversion Date in determining the Applicable Conversion Rate.




If any dividend or distribution described in this Section 10.04(c) is declared but not paid
or made, the Applicable Conversion Rate shall be readjusted, as of the date that is the
earlier of (i) the public announcement of the non-payment of the dividend or distribution
and (ii) the date that the dividend or distribution was to have been paid, in which case,
the Applicable Conversion Rate will be the Applicable Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.




For the purposes of this Section 10.04(c), rights, warrants or options distributed by the
Company to all holders of Common Stock entitling them to subscribe for or purchase shares of
the Company’s capital stock (either initially or under certain circumstances), which rights,
warrants or options until the occurrence of a specified event or events (a “Trigger Event”):
(1) are deemed to be transferred with such shares of Common Stock; (2) are not exercisable;
and (3) are also issued in respect of future issuances of Common Stock, shall be deemed not
to have been distributed for purposes of this Section 10.04(c), (and no adjustment to the
Conversion Rate under this Section 10.04(c) will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall
be made under this Section 10.04(c). If any such right, warrant or option, including any
such existing rights, warrants or options distributed prior to the date of this Indenture,
are subject to events, upon the occurrence of which such rights, warrants or options become
exercisable to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of



59









 







any and each such event shall be deemed to be the date of distribution and record date with
respect to new rights, warrants or options with such rights (and a termination or expiration
of the existing rights, warrants or options without exercise by any of the holders thereof).
In addition, in the event of any distribution (or deemed distribution) of rights, warrants
or options or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Applicable Conversion Rate under this
Section 10.04(c) was made, (1) in the case of any such rights, warrants or options which
shall all have been redeemed or purchased without exercise by any Holders thereof, the
Applicable Conversion Rate shall be readjusted upon such final purchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or purchase price received by a holder of
Common Stock with respect to such rights, warrants or options (assuming such holder had
retained such rights, warrants or options), made to all applicable holders of Common Stock
as of the date of such redemption or purchase, and (2) in the case of such rights, warrants
or options which shall have expired or been terminated without exercise by any holders
thereof, the Applicable Conversion Rate shall be readjusted as if such rights, warrants or
options had not been issued.




     (d) If any cash dividend or other distribution is made to all, or substantially all,
holders of Common Stock, the Applicable Conversion Rate shall be adjusted based on the
following formula:








     where:




			
	      CR0       =	 	the Applicable Conversion Rate in effect immediately prior to the
Ex-Dividend Date for such distribution;






			
	      CR’      =	 	the Applicable Conversion Rate in effect immediately after the Ex-Dividend
Date for such distribution;






			
	      SP0      =	 	the Closing Sale Price of a share of Common Stock on the Trading Day
immediately preceding the earlier of the Record Date and the day immediately preceding
the Ex-Dividend Date for such distribution; and






			
	      C       =	 	the amount in cash per share the Company distributes to holders of Common
Stock.






If any dividend or distribution described in this Section 10.04(d) is declared but not so
paid or made, the new Applicable Conversion Rate shall be adjusted, as of the date that is
the earlier of (i) the public announcement of the non-payment of the dividend or
distribution and (ii) the date that the dividend or distribution was to be paid, to the
Applicable Conversion Rate that would then be in effect if such dividend or distribution had
not been declared.



60









 






     (e) If the Company or any Subsidiary makes a payment in respect of a tender offer or
exchange offer for Common Stock, to the extent that the cash and value (which will be,
except for the value of traded securities, determined by the Board of Directors) of any
other consideration included in the payment per share of Common Stock exceeds the Closing
Sale Price per share of Common Stock on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer, the
Applicable Conversion Rate shall be adjusted as of the 10th Trading Day following the date
the tender or exchange offer expires based on the following formula:








     where:




			
	     CR0      =	 	the Applicable Conversion Rate in effect on the 10th day immediately
following, and including, the date such tender or exchange offer expires;






			
	     CR’      =	 	the Applicable Conversion Rate in effect immediately after the 10th Trading
Day immediately following, and including, the date the tender or exchange offer
expires;






			
	     AC      =	 	the aggregate value of all cash and any other consideration (as determined by
the Board of Directors) paid or payable for shares purchased in such tender or exchange
offer;






			
	     OS0      =	 	the number of shares of Common Stock outstanding on the Trading Day
immediately prior to the date such tender or exchange offer expires;






			
	     OS’      =	 	the number of shares of Common Stock outstanding on the Trading Day
immediately after the date such tender or exchange offer expires (after giving effect
to the purchase or exchange of shares pursuant to such tender or exchange offer); and






			
	     SP’      =	 	the average of the Closing Sale Prices of Common Stock over the 10
consecutive Trading Day period commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.






The adjustment to the Applicable Conversion Rate under this Section 10.04(e) shall occur on
the 10th Trading Day from, and including, the Trading Day next succeeding the date such
tender or exchange offer expires; provided that in respect of any conversion within the 10
Trading Days immediately following, and including, the expiration date of any tender or
exchange offer, references within this Section 10.04(e) to “10 Trading Days” shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the expiration date
of such tender or exchange offer and the Conversion Date in determining the Applicable
Conversion Rate.




If the Company is obligated to purchase shares pursuant to any such tender or exchange
offer, but the Company is permanently prevented by applicable law from effecting any



61









 







such purchases or all such purchases are rescinded, the Applicable Conversion Rate shall
again be adjusted to be the Applicable Conversion Rate that would then be in effect if such
tender or exchange had not been made.




     (f) No adjustment to the Applicable Conversion Rate will be required unless the
adjustment would require an increase or decrease of at least 1% of the Applicable Conversion
Rate. If the adjustment is not made because the adjustment does not change the Applicable
Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward
and taken into account in any future adjustments. In addition, the Company will make any
carry forward adjustments not otherwise effected upon required purchases of the Securities
in connection with a Fundamental Change or with respect to a repurchase at the option of
Holders, upon any Redemption Date, upon any conversion of the Securities, on every one year
anniversary from the original issue date and on the Record Date immediately prior to Stated
Maturity of the Securities. Adjustments to the Applicable Conversion Rate will be rounded
to the nearest ten-thousandth, with five one-hundred-thousandths rounded upward (e.g.,
0.76545 would be rounded up to 0.7655).




     (g) The Company from time to time may, to the extent permitted by applicable law,
increase the Applicable Conversion Rate by any amount for a period of at least 20 days if
the Board of Directors shall have made a determination that such increase would be in the
best interests of the Company, which determination shall be conclusive. Whenever the
Applicable Conversion Rate is increased pursuant to this Section 10.04(g) or
Section 10.04(h) below, the Company shall mail to Holders of record of the Securities a
notice of the increase at least 15 days prior to the date the increased Applicable
Conversion Rate takes effect, and such notice shall state the increased Applicable
Conversion Rate and the period during which it will be in effect.




     (h) The Company may (but is not required to) make such increases in the Applicable
Conversion Rate, in addition to any adjustments required by Section 10.04(a),
Section 10.04(b), Section 10.04(c), Section 10.04(d), Section 10.04(e) or Section 10.04(g),
as the Board of Directors considers to be advisable to avoid or diminish income tax to
Holders resulting from any dividend or distribution of Capital Stock issuable on conversion
of the Securities (or rights to acquire shares) or from any event treated as such for income
tax purposes.




     (i) Except as otherwise provided in this Indenture, all calculations under this Article
10 shall be made by the Company. No adjustment shall be made for the Company’s issuance of
Common Stock or securities convertible into or exchangeable for shares of Common Stock or
rights to purchase Common Stock or convertible or exchangeable securities, other than as
provided in this Section 10.04. The Company shall make such calculations in good faith and,
absent manifest error, such calculations shall be binding on the Holders.




     (j) Whenever the Applicable Conversion Rate is adjusted as herein provided, the Company
shall promptly file with the Trustee and any Conversion Agent an Officer’s Certificate
setting forth the Applicable Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until a



62









 







Responsible Officer of the Trustee shall have received such Officer’s Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the Applicable Conversion
Rate and may assume without inquiry that the last Applicable Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Applicable Conversion Rate setting forth
the adjusted Applicable Conversion Rate, a brief statement of the facts requiring such
adjustment and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Applicable Conversion Rate to each Securityholder at such
Holder’s last address appearing on the list of Securityholders provided for in Section 2.05,
within 20 days after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.




     (k) For purposes of this Section 10.04, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company so long as the
Company does not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company, but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.




     (l) Notwithstanding anything to the contrary in this Article 10, no adjustment to the
Applicable Conversion Rate shall be made:




     (i) upon the issuance of any shares of Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or Interest payable on the
Company’s Securities and the investment of additional optional amounts in shares of
Common Stock under any plan;




     (ii) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any Subsidiary;




     (iii) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in
(ii) above outstanding as of the date the Securities were first issued;




     (iv) for a change in the par value of the Common Stock;




     (v) for accrued and unpaid Interest, including any Additional Amounts; or




     (vi) for the avoidance of doubt, for the issuance of Common Stock by the
Company (other than to all or substantially all holders of Common Stock) or the
payment of cash by the Company upon conversion or repurchase of Securities.



     (m) In the event of an adjustment to the Applicable Conversion Rate pursuant to Sections
10.04(d) or (e), in no event will the Applicable Conversion Rate exceed 41.4422



63









 





common shares per $1,000 principal amount of notes, in each case otherwise subject to
adjustments as set forth in Sections 10.04(a), (b) and (c).




     Section 10.05. Reserved.



     Section 10.06. Effect of Reclassification, Consolidation, Merger or Sale. (a) If any of the
following events occur, namely (i) any reclassification of the outstanding shares of Common Stock
(other than a subdivision or combination to which Section 10.04(c) applies or a change in par
value) as a result of which holders of Common Stock shall be entitled to receive cash, securities
or other property (such property, the “Exchange Property”) with respect to or in exchange for such
Common Stock, (ii) any consolidation, merger, binding share exchange or combination of the Company
with another person as a result of which holders of Common Stock shall be entitled to receive
Exchange Property with respect to or in exchange for such Common Stock, or (iii) any sale or
conveyance of all or substantially all the properties and assets of the Company to any other person
as a result of which holders of Common Stock shall be entitled to receive Exchange Property with
respect to or in exchange for such Common Stock, then the Company or the successor or purchasing
person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of such supplemental
indenture) providing for the conversion and settlement of the Securities as set forth in this
Indenture. Such supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 10. If, in the
case of any such reclassification, change, consolidation, merger, binding share exchange,
combination, sale or conveyance, the Exchange Property receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, binding share exchange, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.



     (b) The Conversion Obligation with respect to each $1,000 principal amount of Securities
converted following the effective date of any such transaction, shall be calculated (as provided in
clause (c) below) based on the Exchange Property. In the event holders of the Common Stock have
the opportunity to elect the form of consideration to be received in such transaction, the Company
shall make adequate provision whereby the Holders of the Securities shall have a reasonable
opportunity to determine the form of consideration, consistent with the election rights and
restrictions applicable to holders of Common Stock, into which all of the Securities, treated as a
single class, shall be convertible from and after the effective date of such transaction. Such
determination shall be made pursuant to Section 1.05 and shall be subject to any limitations to
which all of the holders of the Common Stock are subject, such as pro-rata reductions applicable to
any portion of the consideration payable in such event and shall be conducted in such a manner as
to be completed by the date which is the earliest of (a) the deadline for elections to be made by
holders of the Common Stock in connection with such transaction, and (b) two Trading Days prior to
the anticipated effective date of such event. The Company shall provide notice of the opportunity
to determine the form of such consideration, as well as notice of the determination made by Holders
of the Securities by issuing a press release



64









 





and providing a copy of such notice to the Trustee. The Company shall not become a party to
any such transaction unless its terms are consistent with the preceding.




     (c) The Conversion Obligation in respect of any Securities converted following the effective
date of any such transaction shall be computed in the same manner as set forth in
Section 10.03(a) except that (1) if the Securities become convertible into Exchange Property, the
Daily VWAP of the Common Stock shall be deemed to equal the sum of (A) 100% of the value of any
Exchange Property consisting of cash received per share of Common Stock, (B) the Daily VWAP of any
Exchange Property received per share of Common Stock consisting of securities that are traded on a
U.S. national securities exchange and (2) the Fair Market Value of any other Exchange Property
received per share, as determined by an independent nationally recognized investment bank selected
by the Company for this purpose. Settlement (in cash and/or shares) shall occur on the Conversion
Settlement Date, provided, that any amount of the Settlement Amount or Settlement Shares, as
applicable, to be delivered in shares of Common Stock shall be paid in Exchange Property rather
than shares of Common Stock. If the Exchange Property includes more than one kind of property, the
amount of Exchange Property of each kind to be delivered shall be in the proportion that the value
of the Exchange Property (as calculated pursuant to Section 10.03) of such kind bears to the value
of all such Exchange Property. If the foregoing calculations would require the Company to deliver
a fractional share or unit of Exchange Property to a Holder of Securities being converted, the
Company shall deliver cash in lieu of such fractional share or unit based on the value of the
Exchange Property.



     (d) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder of Securities, at its address appearing on the Security register provided for
in Section 10.03 of this Indenture, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture.



     (e) The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges, combinations, sales
and conveyances.



     If this Section 10.06 applies to any event or occurrence, Section 10.04 shall not apply to
such event or occurrence.



     Section 10.07. Taxes on Shares Issued. The issue of stock certificates on conversions of
Securities shall be made without charge to the converting Holder for any tax in respect of the
issue thereof, except for applicable withholding, if any. The Company shall not, however, be
required to pay any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the Holder or beneficial owner of any
Securities converted, and the Company shall not be required to issue or deliver any such stock
certificate unless and until the person or persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or that none is due.



     Section 10.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements. (a) The Company shall provide, free from preemptive rights, out of its authorized
but unissued shares or shares held in treasury, sufficient shares of Common



65









 





Stock for the conversion of the Securities from time to time as such Securities are presented
for conversion.




     (b) Before taking any action which would cause an adjustment increasing the Applicable
Conversion Rate to an amount that would cause the Applicable Conversion Price to be reduced below
the then par value, if any, of the shares of Common Stock issuable upon conversion of the
Securities, the Company shall take all corporate action which may, in the opinion of its counsel,
be necessary in order that the Company may validly and legally issue shares of such Common Stock at
such adjusted Applicable Conversion Rate.



     (c) (i) The Company covenants that all shares of Common Stock which may be issued upon
conversion of Securities shall upon issue be fully paid and non-assessable by the Company and free
from all taxes, liens and charges with respect to the issue thereof.




     (ii) The Company covenants that, if any shares of Common Stock to be provided for the
purpose of conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be validly
issued upon conversion, the Company shall in good faith and as expeditiously as possible, to
the extent then permitted by the rules and interpretations of the SEC (or any successor
thereto), endeavor to secure such registration or approval, as the case may be.



     Section 10.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Securities to determine the
Applicable Conversion Rate or whether any facts exist which may require any adjustment of the
Applicable Conversion Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Security; and the Trustee and any other Conversion Agent make
no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Security
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 10. Without limiting the generality of the foregoing,
neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered into pursuant to
Section 10.06 relating either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their Securities after any event
referred to in such Section 10.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon the Officer’s Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.



66









 





ARTICLE 11

Redemption




     Section 11.01. Redemption.



     (a) The Company shall not have the right to redeem any Securities prior to April 5, 2015. No
sinking fund is provided for the Securities.



     (b) The Company shall have the right to redeem the Securities, in whole or in part at any time
or from time to time, on or after April 5, 2015 upon not less than 45 days’ prior written notice to
the Trustee and not less than 30 nor more than 60 days’ prior written notice by mail to the Holders
of the Securities, at a redemption price (the “Redemption Price”) for cash equal to 100% of the
principal amount of the Securities to be redeemed plus any accrued but unpaid interest (including
any Additional Interest) to, but excluding, the Redemption Date.



     (c) If the Redemption Date is after the close of business on the Interest Record Date for the
payment of an installment of interest and before the related Interest Payment Date, then the
payment of interest becoming due on that date will be payable to the Holder of record at the close
of business on the relevant Record Date, and the Redemption Price will not include such interest
payment. If less than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed (in principal amounts of $1,000 and integral multiples thereof) on a pro
rata basis or by such other method the Trustee considers fair and appropriate or is required by the
Depositary for the Securities. The Trustee shall make the selection at least 30 days but not more
than 60 days before the Redemption Date from outstanding Securities not previously called for
redemption. Securities and portions of the principal amount thereof selected for redemption shall
be in integral multiples of $1,000. The Trustee shall notify the Company promptly of the
Securities or portions of the principal amount thereof to be redeemed. If the Trustee selects a
portion of a Security for partial redemption and a Holder converts a portion of the same Security
before termination of the conversion right with respect to the portion of the Security so selected,
the converted portion of such Security shall be deemed to be from the portion selected for
redemption. Securities that have been converted during a selection of Securities to be redeemed
shall be treated by the Trustee as outstanding for the purpose of such selection.



     (d) If the Paying Agent holds, in accordance with the terms of this Indenture, money
sufficient to pay the Redemption Price of such Securities on the Redemption Date, then, on and
after such date, such Securities shall cease to be outstanding and interest on such Securities
shall cease to accrue and all rights of the Holders of such Securities shall terminate (other than
the right to receive the Redemption Price (and additional interest, if any) due on the Redemption
Date). Such will be the case whether or not book entry transfer of the Securities in book entry
form is made and whether or not Securities in certificated form, together with the necessary
endorsements, are delivered to the Paying Agent.



     (e) A notice of redemption sent to the Holders of Securities to be redeemed in accordance with
the provisions of the two preceding paragraphs shall state:




     (i) the name of the Paying Agent and Conversion Agent;



67









 






     (ii) the then current Conversion Rate;



     (iii) that Securities called for redemption may be converted at any time prior to the
close of business on the Second Business Day immediately preceding the Redemption Date,
unless the Company fails to pay the Redemption Price; and



     (iv) that Holders who wish to convert Securities must comply with the procedures
relating thereto specified in Section 10.02 hereof.


ARTICLE 12

Miscellaneous



     Section 12.01. Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included in this Indenture
by the TIA, the required provision shall control.


     Section 12.02. Notices. Any request, demand, authorization, notice, waiver, consent or
communication by the Company or the Trustee to the other is duly given if in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission to the following facsimile numbers:


if to the Company:



Dollar Financial Corp.

1436 Lancaster Avenue

Berwyn, PA 19312

Attn: Randy Underwood

Facsimile: (610) 296-7844



With a copy to (which shall not constitute notice):



General Counsel

Dollar Financial Corp.

1436 Lancaster Avenue

Berwyn, PA 19312

Facsimile: (610) 296-7844



and



Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103

Attn: Brian M. Katz

Facsimile: (215) 981-4750


if to the Trustee:


68








 








U.S. Bank National Association

225 Asylum Street

23rd Floor

Hartford, CT 06103



     The Company or the Trustee by notice given to the other in the manner provided above may
designate additional or different addresses for subsequent notices or communications.



     Any notice or communication given to a Securityholder shall be delivered to the
Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage
prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time prescribed.



     Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not received by the addressee;
provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until
the Trustee actually receives same at the address given above.



     If the Company mails a notice or communication to the Securityholders, it shall mail a copy to
the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.



     Section 12.03. Communication by Holders with Other Holders. Securityholders may communicate
pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section 312(c).



     Section 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture (other than to
authenticate the Securities under Section 2.02), the Company shall furnish to the Trustee:



     (a) an Officer’s Certificate stating that, in the opinion of the signer, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and



     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with.



     Section 12.05. Statements Required in Certificate or Opinion. Each Officer’s Certificate or
Opinion of Counsel delivered pursuant to Section 12.04 with respect to compliance with a covenant
or condition provided for in this Indenture shall include:



     (a) a statement that each person making such Officer’s Certificate or Opinion of Counsel has
read such covenant or condition;



69









 





     (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such Officer’s Certificate or Opinion of Counsel are
based;



     (c) a statement that, in the opinion of each such person, he has made such examination or
investigation as is necessary to enable such person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and



     (d) a statement that, in the opinion of such person, such covenant or condition has been
complied with.



     Section 12.06. Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 12.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the
Conversion Agent, the Bid Solicitation Agent and the Paying Agent may make reasonable rules for
their functions.



     Section 12.08. Legal Holidays. A “legal holiday” is any day other than a Business Day. If
any specified date (including a date for giving notice) is a legal holiday, the action shall be
taken on the next succeeding day that is not a legal holiday, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest shall accrue with respect to such
payment for the intervening period.



     Section 12.09. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF.



     Section 12.10. No Recourse Against Others. A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the
issue of the Securities.



     Section 12.11. Successors. All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall bind its
successor.



     Section 12.12. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



70









 





     IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on
behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 	 	 
	 	 	DOLLAR FINANCIAL CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William M. Athas	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: William M. Athas	 	 
	 
	 	 	 	 	 	 
	 	 	Title: Senior Vice President, Finance and Corporate
Controller	 	 






 









 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark A. Forgetta	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Mark A. Forgetta	 	 
	 
	 	 	 	 	 	 
	 	 	Title: Vice President	 	 







 











 





EXHIBIT A




[FORM OF FACE OF GLOBAL SECURITY]




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



     NEITHER THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY SHARES OF COMMON
STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) (A
“QUALIFIED INSTITUTIONAL BUYER”); (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
OR ANY COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), ONLY (A) TO DOLLAR FINANCIAL CORP. (THE “ISSUER”) OR A SUBSIDIARY THEREOF,
(B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED



A-1









 







INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR (D) UNDER ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND
WILL BE REMOVED ON THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(B) ABOVE OR ON ANY
TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).



A-2









 





Dollar Financial Corp.




3.00% Senior Convertible Notes Due 2028



	 	 	 
	CUSIP:
	 	 
	ISSUE DATE: [          ]

	 	Principal Amount: $






No.




     Dollar Financial Corp., a Delaware corporation, promises to pay to Cede & Co. or registered
assigns, the principal amount of [•], on April 1, 2028.



Interest Rate: 3.00% per year.




Interest Payment Dates: April 1 and October 1 of each year, commencing April 1, 2010.




Interest Record Date: March 15 and September 15 of each year.




     Reference is hereby made to the further provisions of this Security set forth on the reverse
side of this Security, which further provisions shall for all purposes have the same effect as if
set forth at this place.



A-3









 





IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.




	 	 	 	 	 	 	 
	Dated:	 	Dollar Financial Corp.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






A-4









 




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

U.S. BANK NATIONAL ASSOCIATION,

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.


	 	 	 	 	 
	By
	 	 	 	 
	 
	 	 
	 	 
	Authorized Officer	 	 




Dated:


A-5







 








[FORM OF REVERSE OF GLOBAL SECURITY]




3.00% Senior Convertible Notes Due 2028



     This Security is one of a duly authorized issue of 3.00% Senior Convertible Notes Due 2028
(the “Securities”) of Dollar Financial Corp., Inc., a Delaware corporation (including any successor
corporation under the Indenture hereinafter referred to, the “Company”), issued under an Indenture,
dated as of December 21, 2009 (the “Indenture”), between the Company and U.S. Bank National
Association, as trustee (the “Trustee”). The terms of the Security include those stated in the
Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (“TIA”), and those set forth in this Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, in the event of any inconsistency between the terms of this
Security and the terms of the Indenture, the terms of the Indenture shall control. Capitalized
terms used but not defined herein have the meanings assigned to them in the Indenture unless
otherwise indicated.



1. Interest.




     The Securities shall bear Interest on the principal amount thereof at a rate of 3.00%
per year. The Company shall also pay any Additional Amounts as set forth in the Indenture.



     Interest shall be payable semi-annually in arrears on each Interest Payment Date to Holders at
the close of business on the preceding Interest Record Date. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30 day months and will accrue from December 21, 2009 or
from the most recent date to which Interest has been paid or duly provided for.



     The Company shall pay Interest to the Securityholder of record on the Interest Record Date,
except that if a Securityholder elects to require the Company to repurchase Securities on a date
that is after an Interest Record Date but on or prior to the corresponding Interest Payment Date,
the Company shall pay accrued and unpaid Interest on the Securities being repurchased to, but not
including, the Fundamental Change Repurchase Date to the Securityholder of record on the
Fundamental Change Repurchase Date.



     If the principal amount of any Security, or any accrued and unpaid Interest or any Additional
Amounts are not paid when due (whether upon acceleration pursuant to Section 6.02 of the Indenture,
upon the date set for payment of the Fundamental Change Repurchase Price pursuant to Section 4
hereof, upon the Stated Maturity of the Securities, upon the Interest Payment Dates), then in each
such case the overdue amount shall, to the extent permitted by law, bear cash interest at the rate
of 3.00% per annum, compounded semi-annually, which interest shall accrue from the date such
overdue amount was originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for. All such interest shall be payable in cash on demand but if not
so demanded shall be paid quarterly to the Holders on the last day of each quarter.



2. Method of Payment.




A-6









 








     Except as provided below, the Company shall pay Interest, including any Additional Amounts on
(i) Global Securities, to DTC in immediately available funds, (ii) any Certificated Security having
an aggregate principal amount of $2,000,000 or less, by check mailed to the Holder of such Security
and (iii) any Certificated Security having an aggregate principal amount of more than $2,000,000,
by wire transfer in immediately available funds if requested by the Holder of any such Security as
least five business days prior to the relevant Interest Payment Date.



     At Stated Maturity, the Company shall pay Interest on Certificated Securities at the Company’s
office or agency maintained for that purpose, which initially shall be the office or agency of the
Trustee located at 60 Livingston Avenue, St. Paul, MN 55107.



     Subject to the terms and conditions of the Indenture, the Company shall make payments in cash
in respect of Fundamental Change Repurchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the Securities. The Company
shall pay cash amounts in money of the United States that at the time of payment is legal tender
for payment of public and private debts. However, the Company may make such cash payments by check
payable in such money.



3. Indenture.




     The Securities are general unsecured obligations of the Company limited to $120,000,000
aggregate principal amount. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.



     The Company may, without the consent of any holders of Securities, reopen the Securities and
issue additional Securities hereunder with the same terms and with the same CUSIP number as the
Securities initially issued hereunder in an unlimited aggregate principal amount, which will form
the same series with the Securities initially issued hereunder so long as such additional
Securities are fungible with the Securities initially issued hereunder for U.S. federal income tax
purposes.



4. Repurchase By the Company at the Option of the Holder.




     (a) Subject to the terms and conditions of the Indenture, a Holder shall have the right to
require the Company to repurchase all of its Securities, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple thereof, on each of April 1, 2015, April 1,
2018 and April 1, 2023 (each, an “Optional Repurchase Date”) for cash equal to 100% of the
principal amount of the Securities to be repurchased plus accrued but unpaid interest (including
any Additional Interest) to, but excluding, such Optional Repurchase Date (the “Optional Repurchase
Price”), upon delivery to the Paying Agent of an Optional Repurchase Notice containing the
information set forth in the Indenture.



     (b) At the option of any Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder after the
occurrence of a Fundamental Change for a Fundamental Change Repurchase Price equal to 100% of the
principal amount of those Securities plus accrued and unpaid Interest and any accrued and unpaid
Additional Amounts, on those Securities up to, but not including, the



A-7









 





Fundamental Change Repurchase Date. To exercise such right, a Holder shall deliver to the
Paying Agent a Fundamental Change Repurchase Notice containing the information set forth in the
Indenture at any time on or prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date and shall deliver the Securities to the Paying
Agent as set forth in the Indenture.




5. Redemption by the Company




     The Company shall not have the right to redeem any Securities prior to April 5, 2015.



     The Company shall have the right to redeem the Securities for cash, in whole or in part at any
time or from time to time, on or after April 5, 2015 at a redemption price (the “Redemption Price”)
for cash equal to 100% of the principal amount of the Securities to be redeemed plus any accrued
but unpaid interest (including any Additional Amounts) to, but excluding, the Redemption Date.



     Notice of redemption at the option of the Company shall be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at the
Holder’s registered address. Securities in denominations larger than $1,000 principal amount may
be redeemed in part but only in integral multiples of $1,000 principal amount.



     Holders have the right to withdraw any Fundamental Change Repurchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture.



     If cash sufficient to pay the Fundamental Change Repurchase Price of all Securities or
portions thereof to be purchased as of the Fundamental Change Repurchase Date is deposited with the
Paying Agent, prior to or on the Business Day following the Fundamental Change Repurchase Date,
Interest and any Additional Amounts shall cease to accrue on such Securities (or portions thereof)
on and following such Fundamental Change Repurchase Date, and the Holder thereof shall have no
other rights as such other than the right to receive the Fundamental Change Repurchase Price upon
surrender of such Security.



6. Conversion.




     Subject to the occurrence of certain events and in compliance with the provisions of the
Indenture (including, without limitation, the conditions to conversion of this Security set forth
in Section 10.01 thereof), a Holder is entitled, at such Holder’s option, to convert the Holder’s
Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple of
$1,000) at the Applicable Conversion Rate in effect at the time of conversion.



     The Company shall notify Holders of any event triggering the right to convert the Securities
as specified in the Indenture.



     A Security in respect of which a Holder has delivered a Fundamental Change Repurchase Notice
exercising the option of such Holder to require the Company to purchase such Security, may be
converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with the
terms of the Indenture.



A-8









 





     The initial Applicable Conversion Rate is 34.5352 shares of Common Stock per $1,000 principal
amount, subject to adjustment in certain events described in the Indenture. The Applicable
Conversion Rate shall not be adjusted for any accrued and unpaid Interest or any accrued and unpaid
Additional Amounts. Upon conversion, no payment shall be made by the Company with respect to
accrued and unpaid Interest and any accrued and unpaid Additional Amounts. Instead, such amount
shall be deemed paid by the cash and shares of Common Stock, if any, delivered upon conversion of
any Security. In addition, no payment or adjustment shall be made in respect of dividends on the
Common Stock, except as set forth in the Indenture.



     In addition, following certain corporate transactions as set forth in Section 10.01(b) of the
Indenture that constitute a Fundamental Change, a Holder who elects to convert its Securities in
connection with such corporate transaction shall be entitled to receive a make whole premium upon
conversion, subject to the terms and conditions set forth in Section 10.01(c) of the Indenture.



     To surrender a Security for conversion, a Holder must (1) complete and manually sign the
Conversion Notice attached hereto (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent,
(3) if required, furnish appropriate endorsements and transfer documents, (4) if required by
Section 10.02(h) of the Indenture, pay Interest and (5) pay any transfer or similar tax, if
required.



     No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead
of any fractional share of Common Stock that would otherwise be issued upon conversion of such
Security, the Company shall pay a cash adjustment as provided in the Indenture.



     If the Company engages in any reclassification of the Common Stock (other than a subdivision
or combination of its outstanding Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value) or is party to a consolidation, merger, binding share
exchange or transfer of all or substantially all of its assets, and as a result of any such event
the Holders of Common Stock would be entitled to receive Exchange Property for their Common Stock,
upon conversion of the Securities after the effective date of such event, the Conversion Obligation
and the Settlement Amount shall be based on the Applicable Conversion Rate and the Exchange
Property, in each case in accordance with the Indenture. If the transaction also constitutes a
Fundamental Change that would lead to the payment of a make whole premium as set forth in
Section 10.01(c) of the Indenture, if a Holder elects to convert all or a portion of its
Securities, such Holder shall receive a make whole premium upon conversion pursuant to
Section 10.01(c) of the Indenture, subject to the terms and conditions set forth in such Section.



7. Paying Agent, Conversion Agent, Bid Solicitation Agent and Registrar.




     Initially, the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than
notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act
as Paying Agent, Conversion Agent or Registrar.



A-9









 





8. Denominations; Transfer; Exchange.




     The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities in respect
of which a Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the
case of a Security to be purchased in part, the portion of the Security not to be purchased).



9. Persons Deemed Owners.




     Except as otherwise provided in the Indenture, the registered Holder of this Security will be
treated as the owner of this Security for all purposes.



10. Unclaimed Money or Securities.




     The Trustee and the Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Securities that remains
unclaimed for one year, subject to applicable abandoned property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.



11. Amendment; Waiver.




     Subject to certain exceptions set forth in the Indenture, (a) the Indenture or the Securities
may be amended with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities and (b) certain Events of Defaults may be waived
with the written consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities (i) to add guarantees with respect to the Securities or secure the Securities, (ii) to
add to the covenants of the Company or Events of Default for the benefit of the Holders of
Securities, (iii) to surrender any right or power conferred upon the Company in the Indenture,
(iv) to provide for the assumption by a successor company of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, sale conveyance, transfer, sale or
lease as provided under the Indenture, (v) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, (vi) to cure any ambiguity or
to correct or supplement any provision in the Indenture which may be inconsistent with any other
provision in the Indenture, (vii) to make other changes to the Indenture or forms or terms of the
Securities so long as no such change individually or in the aggregate with all other such changes
has or will have a material adverse effect on the interests of the Holders of the Securities,
(viii) to establish the form of Securities substantially in the form of Exhibit B to the Indenture,
(ix) to evidence and provide for the acceptance of the appointment under the Indenture of a
successor Trustee in accordance with the terms of the Indenture and (x) to provide for
uncertificated



A-10









 





Securities in addition to or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the
Code.




12. Defaults and Remedies.




     As set forth in the Indenture, subject to certain exceptions, if any Event of Default with
respect to Securities shall occur and be continuing, the principal amount of the Securities and any
accrued and unpaid Interest and any accrued and unpaid Additional Amounts on all the Securities may
be declared due and payable in the manner and with the effect provided in the Indenture.



13. Trustee Dealings with the Company.




     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



14. Calculations in Respect of Securities.




     Except as otherwise provided in the Indenture, the Company or its agents shall be responsible
for making all calculations called for under the Securities including, but not limited to,
determination of the market prices for the Securities and of the Common Stock and any Additional
Amounts accrued on the Securities. Any calculations made in good faith and without manifest error
shall be final and binding on Holders of the Securities. The Company or its agents shall be
required to deliver to the Trustee a schedule of its calculations and the Trustee shall be entitled
to conclusively rely upon the accuracy of such calculations without independent verification.



15. No Recourse Against Others.




     A director, officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.



16. Authentication.




     This Security shall not be valid until an authorized signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.



17. Abbreviations.




A-11









 








     Customary abbreviations may be used in the name of a Securityholder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).



18. Governing Law.




     THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.



19. Copy of Indenture.




     The Company shall furnish to any Securityholder upon written request and without charge a copy
of the Indenture which has in it the text of this Security in larger type. Requests may be made
to:




Dollar Financial Corp.

1436 Lancaster Avenue

Berwyn, PA 19312

Attn: Randy Underwood

Facsimile: (610) 296-7844








A-12









 






	 	 	 
	ASSIGNMENT FORM
	 
	 	 
	To assign this Security, fill in the form below:
	 
	 	 
	I or we assign and transfer this Security to
	 
	 	 
	 

	 	 
	 
(Insert assignee’s soc. sec. or tax ID no.)	 	 
	
	 
	 	 
	 

	 	 
	 

	 	 
	 
	 	 
	(Print or type assignee’s name, address and zip
code)
	 
	 	 
	and irrevocably appoint                                         
agent to transfer this Security on the books of
the Company. The agent may substitute another
to act for him.






	 	 	 
	CONVERSION NOTICE
	 
	 	 
	To convert this Security, check the box o
	 
	 	 
	To convert only part of this Security, state
the principal amount to be converted (which
must be $1,000 or an integral multiple of
$1,000):
	 
	 	 
	If you want the stock certificate made out in 

another person’s name fill in the form below:
	 
	 	 
	 

	 	 
	 

	 	 
	(Insert the other person’s soc. sec. tax ID no.)
	 
	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	 

	 	 
	(Print or type other person’s name, address and
zip code)








Date:                      Your Signature:                                              
                              



	 	 	 	 	 	 	 
	   	 	 
	(Sign exactly as your name appears on the other side of this Security)	 	 
	 
	 	 	 	 	 	 
	Signature Guaranteed	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Participant in a Recognized Signature	 	 	 	 
	 
	 	 	 	 	 	 
	Guarantee Medallion Program	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 
	 	 

	 	 	 	 
	 
	 	 	 	 	 	 
	Authorized Signatory	 	 	 	 






A-13








 




SCHEDULE OF INCREASES AND DECREASES

OF GLOBAL SECURITY



Initial Principal Amount of Global Security:                                                              ($ 
                                       ).



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Amount of	 	Principal	 	 
	 	 	Increase in	 	Decrease in	 	Amount of	 	Notation by
	 	 	Principal	 	Principal	 	Global Security	 	Registrar or
	 	 	Amount of	 	Amount of	 	After Increase or	 	Security
	Date	 	Global Security	 	Global Security	 	Decrease	 	Custodian
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 




A-14








 





EXHIBIT B




[FORM OF FACE OF CERTIFICATED SECURITY]




     NEITHER THIS SECURITY NOR ANY SHARES OF COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY SHARES OF COMMON
STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) (A
“QUALIFIED INSTITUTIONAL BUYER”); (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
OR ANY COMMON STOCK ISSUABLE ON CONVERSION OF THIS SECURITY, PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), ONLY (A) TO DOLLAR FINANCIAL CORP. (THE “ISSUER”) OR A SUBSIDIARY THEREOF,
(B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE UNDER RULE 144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (D) UNDER ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER UNDER CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED ON THE EARLIER OF THE TRANSFER OF THIS SECURITY UNDER CLAUSE 2(B) ABOVE
OR ON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION).



B-1









 





Dollar Financial Corp.




3.00% Senior Convertible Notes Due 2028



	 	 	 
	CUSIP:
	 	 
	ISSUE DATE:

	 	Principal Amount: $






No.




Dollar Financial Corp., a Delaware corporation, promises to pay to Cede & Co. or registered
assigns, the principal amount of [•], on April 1, 2028.




Interest Rate: 3.00% per year.




Interest Payment Dates: April 1 and October 1 of each year, commencing April 1, 2010.




Interest Record Date: March 15 and September 15 of each year.




Reference is hereby made to the further provisions of this Security set forth on the reverse side
of this Security, which further provisions shall for all purposes have the same effect as if set
forth at this place.




B-2









 








IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.




	 	 	 	 	 	 	 
	Dated:                     	 	Dollar Financial Corp.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 











B-3









 











TRUSTEE’S CERTIFICATE OF AUTHENTICATION

                                                            ,

U.S. Bank National Association

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 

	 	 
	Authorized Signatory	 	 






Dated:                     




B-4









 








[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]




B-5









 




EXHIBIT C


Dollar Financial Corp.


3.00% Senior Convertible Notes due 2028


Transfer Certificate


     In connection with any transfer of any of the Securities within the period prior to the
expiration of the holding period applicable to the sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the
undersigned registered owner of this Security hereby certifies with respect to $                    
principal amount of the above-captioned Securities presented or surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for exchange or conversion where the
securities issuable upon such exchange or conversion are to be registered in a name other than that
of the undersigned registered owner (each such transaction being a “transfer”), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:



	 	o 	 	A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or
	 
	 	o 	 	 The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or
	 
	 	o 	 	 The transfer of the Surrendered Securities complies with Rule 144A under the
Securities Act; or
	 
	 	o 	 	 The transfer of the Surrendered Securities is pursuant to Rule 144 under the
Securities Act and each of the conditions set forth in such rule have been met;




and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).




	 	o 	 	The transferee is an Affiliate of the Company.




	 	 	 	 	 
	DATE:
	 	 	 	 
	 
	 	 
	 	 
	 
	 	Signature(s)	 	 




C-1








 








(If the registered owner is a corporation, partnership or fiduciary, the title of the person
signing on behalf of such registered owner must be stated.)




Signature Guaranteed




                                                                   
             

Participant in a Recognized Signature




Name:




Address:




Tax I.D.:




C-2









 





EXHIBIT D




DOLLAR FINANCIAL CORP.

NOTICE OF OCCURRENCE

OF FUNDAMENTAL CHANGE




[DATE]




     To the Holders of the 3.00% Senior Convertible Notes Due 2028 (the “Securities”) issued by
Dollar Financial Corp.:



Dollar Financial Corp. (the “Company”) by this written notice hereby notifies you, pursuant to
Section 3.02 of that certain Indenture (the “Indenture”), dated as of December 21, 2009, between
the Company and U.S. Bank National Association, that a Fundamental Change (as such term and other
capitalized terms used herein and not otherwise defined herein is defined in the Indenture) as
described below has occurred. Included herewith is the form of Fundamental Change Repurchase
Notice to be completed by you if you wish to have your Securities repurchased by the Company.




     1. Fundamental Change: [Insert brief description of the Fundamental Change and the date of the
occurrence thereof].



     2. Date by which Fundamental Change Repurchase Notice must be delivered by you to Paying Agent
in order to have your Securities repurchased:



     3. Fundamental Change Repurchase Date:



     4. Fundamental Change Repurchase Price:



     5. Paying Agent and Conversion Agent: [NAME] [ADDRESS]



     6. Applicable Conversion Rate: To the extent described in Item 7 below, each $1,000 principal
amount of the Securities is convertible into [insert number of shares] shares of the Company’s
common stock, par value $0.001 per share (the “Common Stock”), subject to adjustment.



     7. The Securities as to which you have delivered a Fundamental Change Repurchase Notice to the
Paying Agent may be converted if they are otherwise convertible pursuant to Article 10 of the
Indenture and the terms of the Securities only if you withdraw such Fundamental Change Repurchase
Notice pursuant to the terms of the Indenture. Subject to Section 10.01 of the Indenture, you may
be entitled to have your Securities converted into cash and shares of the Company’s common stock,
if any:




     (i) during any fiscal quarter of the Company commencing after December 31, 2009 (and
only during such fiscal quarter), if the Closing Sale Price (as defined in the Indenture) of
the Company’s common stock for at least 20 Trading Days during the period of 30 consecutive
Trading Days ending on the last Trading Day (as defined in the Indenture) of the immediately
preceding fiscal quarter was more than 130% of the Applicable Conversion Price (as defined
in the Indenture) on such last Trading Day;



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     (ii) during the five business days immediately following any five consecutive
Trading-Day period in which the Trading Price (as defined in the Indenture) per $1,000
principal amount of the Securities for each day of that period was less than 98% of the
product of the Closing Sale Price of the Common Stock and the Applicable Conversion Rate (as
defined in the Indenture) of the Securities on each such day;




     (iii) on or after September 30, 2027;




     (iv) if the Securities have been called for redemption; or




     (v) upon the occurrence of certain specified corporate transactions described in the
Indenture.



     8. The Securities as to which you have delivered a Fundamental Change Repurchase Notice must
be surrendered by you (by effecting book entry transfer of the Securities or delivering
Certificated Securities, together with necessary endorsements, as the case may be) to [Name of
Paying Agent] at [insert address] in order for you to collect the Fundamental Change Repurchase
Price.



     9. The Fundamental Change Repurchase Price for the Securities as to which you have delivered a
Fundamental Change Repurchase Notice and not withdrawn such Notice shall be paid, subject to
receipt of funds and/or securities by the Paying Agent, promptly following the later of the
Business Day immediately following such Fundamental Change Repurchase Date and the date you deliver
such Securities to [Name of Paying Agent].



     10. In order to have the Company repurchase your Securities, you must deliver the Fundamental
Change Repurchase Notice, duly completed by you with the information required by such Fundamental
Change Repurchase Notice (as specified in Section 3.02 of the Indenture) and deliver such
Fundamental Change Repurchase Notice to the Paying Agent at any time until 5:00 p.m. (New York City
Time) on the Business Day immediately preceding the Fundamental Change Repurchase Date.



     11. In order to withdraw any Fundamental Change Repurchase Notice previously delivered by you
to the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. (New York City time) on the
Business Day immediately preceding the Fundamental Change Repurchase Date, a written notice of
withdrawal specifying (i) the certificate number, if any, of the Securities in respect of which
such notice of withdrawal is being submitted, (ii) the principal amount of the Securities in
respect of which such notice of withdrawal is being submitted, and (iii) if you are not withdrawing
your Fundamental Change Repurchase Notice for all of your Securities, the principal amount of the
Securities which still remain subject to the original Fundamental Change Repurchase Notice.



     12. Unless the Company defaults in making the payment of the Fundamental Change Repurchase
Price owed to you, Interest and any Additional Amounts on your Securities as to which you have
delivered a Fundamental Change Repurchase Notice shall cease to accrue on and after the Fundamental
Change Repurchase Date.



     13. CUSIP Number:



Dollar Financial Corp.




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     SCHEDULE I



The following table sets forth the Stock Prices and the make whole premium per $1,000 principal
amount of Securities.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Effective Date
	 	 	 	 	 	 	12/2/2009	 	4/1/2010	 	4/1/2011	 	4/1/2012	 	4/1/2013	 	4/1/2014	 	4/1/2015
	Stock Price
	 	$	24.13	 	 	 	6.9070	 	 	 	6.9070	 	 	 	6.9070	 	 	 	6.9070	 	 	 	6.9070	 	 	 	6.9070	 	 	 	6.9070	 
	 
	 	$	27.50	 	 	 	5.3277	 	 	 	5.3230	 	 	 	5.2830	 	 	 	5.2463	 	 	 	4.7519	 	 	 	3.9505	 	 	 	1.8292	 
	 
	 	$	30.00	 	 	 	4.4825	 	 	 	4.4615	 	 	 	4.4342	 	 	 	4.1632	 	 	 	3.5744	 	 	 	2.6180	 	 	 	0.0000	 
	 
	 	$	32.50	 	 	 	3.8253	 	 	 	3.7890	 	 	 	3.6891	 	 	 	3.3614	 	 	 	2.7368	 	 	 	1.7446	 	 	 	0.0000	 
	 
	 	$	35.00	 	 	 	3.3042	 	 	 	3.2586	 	 	 	3.1140	 	 	 	2.7593	 	 	 	2.1356	 	 	 	1.1794	 	 	 	0.0000	 
	 
	 	$	40.00	 	 	 	2.5414	 	 	 	2.4882	 	 	 	2.3033	 	 	 	1.9457	 	 	 	1.3805	 	 	 	0.5848	 	 	 	0.0000	 
	 
	 	$	50.00	 	 	 	1.6419	 	 	 	1.5923	 	 	 	1.4135	 	 	 	1.1235	 	 	 	0.7200	 	 	 	0.2342	 	 	 	0.0000	 
	 
	 	$	60.00	 	 	 	1.1428	 	 	 	1.1028	 	 	 	0.9592	 	 	 	0.7436	 	 	 	0.4646	 	 	 	0.1519	 	 	 	0.0000	 
	 
	 	$	70.00	 	 	 	0.8300	 	 	 	0.7990	 	 	 	0.6895	 	 	 	0.5315	 	 	 	0.3344	 	 	 	0.1144	 	 	 	0.0000	 
	 
	 	$	80.00	 	 	 	0.6174	 	 	 	0.5935	 	 	 	0.5114	 	 	 	0.3952	 	 	 	0.2522	 	 	 	0.0889	 	 	 	0.0000	 
	 
	 	$	90.00	 	 	 	0.4648	 	 	 	0.4464	 	 	 	0.3851	 	 	 	0.2989	 	 	 	0.1932	 	 	 	0.0693	 	 	 	0.0000	 
	 
	 	$	100.00	 	 	 	0.3512	 	 	 	0.3370	 	 	 	0.2914	 	 	 	0.2270	 	 	 	0.1479	 	 	 	0.0537	 	 	 	0.0000	 
	 
	 	$	125.00	 	 	 	0.1696	 	 	 	0.1621	 	 	 	0.1408	 	 	 	0.1096	 	 	 	0.0709	 	 	 	0.0256	 	 	 	0.0000	 
	 
	 	$	150.00	 	 	 	0.0706	 	 	 	0.0676	 	 	 	0.0589	 	 	 	0.0442	 	 	 	0.0260	 	 	 	0.0069	 	 	 	0.0000	 







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